Foreword - Justice Initiative · 2020-04-06 · national tribunals and Chidi Odinkalu’s on...

Human Rights and Justice Sector Reform inAfrica: Contemporary Issues and Responses

ForewordJ. ‘Kayode Fayemi†

The collection of articles in this issue of Justice Initiatives documents some ofthe principal challenges to justice sectorreform in Africa today, and the variedapproaches that interested actors are pursuing in response.

Many of the articles in the present issue of Justice Initiativeswill at first confuse and possibly irritate those who hold to a strictly legalistic view of justice, since they are not consistent with that narrow perspective. Whether dealingwith media repression in Gambia or citizenship chal-lenges across the continent, police reform in Nigeria orpolice accountability in South Africa, what this collection of articles demonstrates clearly is the holistic view of jus-tice which guides the work of the Open Society JusticeInitiative. They show how we and our partners have workedon localizing universal norms (Tracey Gurd’s piece on inter-national tribunals and Chidi Odinkalu’s on regional courts),globalizing local principles of access to justice (Vivek Maru)and promoting the link between justice, safety and securitythrough the safeguarding of accountability mechanisms(articles on the police and the media).

As Vivek Maru’s article on legal dualism in Sierra Leoneexplains, elements of customary justice either co-exist withor have been incorporated into formal justice systems inmany countries, especially in rural areas where formal justice systems are often not present. Any close watcher ofdevelopments in the justice sector in Africa will be famil-iar with the range of informal justice mechanisms that has developed in urban areas. Some of these mechanisms

A publication of the Open Society Justice Initiative, February 2005

Contents

Foreword: J. ’Kayode Fayemi 1

National Criminal Justice Reform

Justice Sector Reform in Africa 4Laure-Hélène Piron

Police Reform in Nigeria 12Innocent Chukwuma

Police Accountability in South Africa 14Cheryl Frank and Sean Tait

Legal Dualism in Sierra Leone 18Vivek Maru

Equality and Citizenship

Citizenship in AfricaJulia Harrington 23

A Precedent for Darfur 29Stephen Humphreys

Refugees on the Senegal River 32Words and Images

International Justice andTransnational Remedies

Regional Courts 45Chidi Anselm Odinkalu

Victim-centered Justice 48Tracey Gurd

Sierra Leone’s Courts and 54the Special CourtZainab Bangura

Congo and the ICC 58Marcel Wetsh’okonda Koso

Charles Taylor in Nigeria 62Babatunde Fagbohunlu

Sudan's Government Does 65Not Hide Its Atrocities Kelly Dawn Askin

Darfur: the New Name 67for GenocideChidi Anselm Odinkalu

Freedom of Expression and Information

Media Freedom in Gambia 70Demba Jawo

Nigeria: Freedom of InformationMaxwell Kadiri 73

are based on modified traditional lawstructures and procedures and focuson problem solving. Others are estab-lished by nongovernmental organiza-tions, and focus on arbitration and con-flict resolution. These traditional andinformal mechanisms are extremelyimportant because of numerous limi-tations on formal justice in Africa.Inadequate resources reduce the reachof the formal systems, which are alsoinaccessible to many Africans due tolanguage problems, poverty, and theabsence or inadequacy of legal aid.Equally important, there has been aclear disconnect between African cul-tural and social practices, which favorrestorative and compensatory justice,and the adversarial nature of formallegal justice systems.

In consequence, traditional andinformal justice systems are receivingrenewed attention, especially efforts tomarry them to formal systems such ascommunity service schemes, police-community liaison groups, communi-ty safety forums, which now extendbeyond the police to other elements of the criminal justice system, andcontextual fine payments. While we do not take a romantic view of cus-tomary law and recognize that it is notalways fully compatible with formallaw, or with the principles and normsunderlying democratic governance, it is important that these differencesare acknowledged openly and that rea-sons for excluding aspects of custom-ary law are fully explained. The test for good practice ought to be theextent to which justice mechanismsguarantee affordability to ordinary

people; proximity to the affected individual’s community; simplicity of procedures and their fairness and con-sistency with cultural expectations.Whether formal or informal, the justice system must eschew historicbiases against traditionally marginal-ized groups—women, youth, and ethnic minorities—dispense justice in local languages, produce outcomesthat emphasize community building,skills transfer, restoration and repara-tion, and ensure that justice is neitherdelayed nor perceived to be so.

While the above remains the ulti-mate goal of the Justice Initiative’swork, the challenge also remains toglobalize good practice and incorpo-rate international instruments thatpromote access to justice into nationallaws. The articles on the Special Court,and Tracey Gurd’s reflection on inter-national tribunals in particular, if theyconfirm the suspicion of local peopleabout externally driven mechanisms,also point out the value of outreachwork since most communities trau-matized by war and genocide still seekjustice. The Justice Initiative’s work inSierra Leone has been particularlyinformed by the need for outreach andadaptation. Between the national andinternational approaches to justice lie the regional tribunals, which ChidiOdinkalu focuses on in his article.There is demonstrable evidencethrough the work of the AfricanCommission on Human and Peoples’Rights that there is value in regionalmechanisms, especially in our questto develop and deepen norms andstandards in the justice sector.

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Human Rights and Justice Sector Reform in Africa

The challenge remains one of stream-lining the raft of regional mechanismsin existence in Africa and ensuringtheir sustenance over the long term.

If regional mechanisms work espe-cially in the context of Africa’s growingdemocratic governance experience,then the question of clarifying the con-cept of citizenship as a human rightsand justice issue becomes central. JuliaHarrington’s article on citizenship anddiscrimination in Africa underscoresthe full extent of this problem and suggests why citizenship needs to bereconceptualized as a prerequisite forthe guarantee of fundamental rightsrather than as an administrative nicety.The Justice Initiative is already work-ing with partners in this direction anda full “Citizenship Audit” is beingundertaken in a number of countriesto seek a fuller understanding of theenormity of the problem.

The media plays a central role ingenerating and resolving conflict, andits role in the citizenship induced crisis in Côte d’Ivoire is at best mixed,at worst dismal. Even so, the right to freedom of expression and informa-tion is one that the Justice Initiativeand partners care passionatelyabout—and for this reason we aredeeply concerned at recent develop-

ments in Gambia as depicted in thepiece written by Demba Jawo. Ourpractical response has been to supportfreedom of expression and informa-tion campaigns in countries likeGhana and Nigeria, as well as ourwork with CREDO at the continentallevel.

We know we run the risk of beingperceived as doing too much in allthese areas, but we believe that by taking a holistic and integrated justicesector reform agenda, incorporatingthe entire gamut of formal and infor-mal, national, and international jus-tice mechanisms, we can add valueand complement the excellent workthat others are doing. It is my hopethat the practical tools and lessons presented here from a variety of expe-riences will inspire, support, andassist our justice institutions, publicpolicy actors, academies, researchinstitutions, civil society organiza-tions, and international actors in thecritical task of promoting access to justice in Africa.

Notes

† J. ‘Kayode Fayemi is the founding director ofthe Centre for Democracy and Development(www.cdd.org.uk). He is a member of the OpenSociety Justice Initiative Board of Directors, andchair of its Africa Sub-Committee.

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Foreword

Laure-Hélène Piron† provides an overviewof justice sector aid in Africa, and gives an assessment of its history and futuredirection at a time when poverty reductionhas risen to the top of the donor agenda.

Donor assistance to promote justicesector reform in sub-Saharan Africa1

has increased significantly over thelast 10 years, from an estimated U.S.$17.7 million in 1994 to over $110 mil-lion in 2002.2 As total aid commit-ments to the region remained stable

during the period, this represents a shift in priorities toward legal andjudicial reform, reflecting both anacknowledgement of Africa-specificdevelopments—notably democratiza-tion and the prevalence of violent con-flicts—as well as increasing interest in justice sector work globally. But isdonor assistance grounded in an ade-quate and appropriate understandingof African realities? This article looksat some of the background to, and

challenges facing, justice sector workin Africa today.

From law reform to the rule of lawDonor policy and practice today can be contrasted with past technicalapproaches, for example, the American“law and development movement” ofthe 1960s and 1970s, focusing onlegal education. In the 1980s, structur-al adjustment programs were widelyimplemented and the World Bankengaged in law reform in the econom-ic and commercial realms to helpdevelop legal environments favorableto investment. Typical initiatives inAfrica included: supporting a newtelecommunications law in Ghana;law revision, updating of case lawreports and a review of commerciallaws in Tanzania as part of a Financialand Legal Management UpgradingProject; and seminars on the Treaty to Harmonize Commercial Law inAfrica, as part of the Togo PublicEnterprises Restructuring andPrivatization Project.3

Donor support for justice sectorreform changed focus with the end of the Cold War and the growing trendtoward multiparty democracy acrossthe continent in the late 1980s andearly 1990s. For example, Swiss gov-ernment support for “rule of law”

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NATIONAL CRIMINAL JUSTICE REFORM

Donor Assistance to Justice Sector Reform in Africa: Living Up to the New Agenda?


Donor support for justice

sector reform changed focus with the

end of the Cold War and the growing

trend toward multiparty democracy

across the continent.

activities began as a late response to apartheid in South Africa and to increased political repression inRwanda in the years prior to the 1994genocide, and led to policies onhuman rights and the rule of law moregenerally.4 USAID came to Africa witha “democratization” lens, inheritedfrom its work in Latin America, andattempted to strengthen judicial inde-pendence in the face of overpoweringexecutives and to provide assistance in drafting democratic constitutions.

The 1994 genocide in Rwandamarked a turning point. The sheerscale of assistance and the range ofinternational and bilateral donor agen-cies involved multiplied in the face ofthe wholesale destruction of the coun-try’s justice system and the urgentneed to commence genocide trials.Pooling mechanisms were used—theUNDP set up a Trust Fund, for exam-ple, and the European Commissionand others provided assistance tointernational NGOs specializing inlegal, judicial and penal reform (theseincluded Avocats sans Frontières,Réseau des Citoyens, Penal ReformInternational, and the Danish Centrefor Human Rights). Activities inRwanda ranged from building court-houses, improving prison conditions,preparing genocide case files, estab-lishing a bar association and a body ofparalegals to work with the Ministry of Justice, and reforming the police.

The new approach included support for domestic civil societyorganizations that demand betterjustice, monitor human rights,

and provide legal assistance. FordFoundation grantees in South Africaundertook public interest litigation,exploiting loopholes in the apartheidsystem’s rhetorical commitment to therule of law. These groups later played amajor role in creating the country’snew constitutional structure and havesince established networks to makelegal services more accessible to all.5

The 1990s saw the rise in impor-tance of a new concept in aid policy—governance—and a concern for build-ing effective state institutions. The ruleof law was seen as essential for estab-lishing a stable, predictable environ-ment conforming to formal rulesrather than patronage. By 2000, theWorld Bank could write about Africa:“legal reform has become a priority inmany countries, and one that Africa’sdevelopment partners are beginning toassist.”6 Beyond addressing nationallegal frameworks, the range of institu-tional development activities fundedby donors focused on increasing effec-tiveness and included improving phys-ical infrastructure, supporting legaland judicial training, making legalinformation accessible or upgrading management systems in ministries.

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The new approach included support

for domestic civil society organizations

that demand better justice, monitor

human rights, and provide

legal assistance.


In Mozambique, following a diagnosticprocess in the late 1990s, USAIDhelped establish a national judicialtraining center and provided support toimprove the efficiency of the MaputoCity Court through the provision ofequipment, benchbooks, a computer-ized case-tracking system, and a courtadministrator.7

The new poverty reduction agenda and legal reform: complementary or conflicting?The increased attention by somedonors to the accessibility of justice,respect for human rights, and theaccountability of institutions to thepublic—rather than the role of the justice sector in promoting economicgrowth—coincided with a shift inglobal donor thinking on aid. With theUN-backed Millennium DevelopmentGoals, world poverty reduction hasnow become the official objective ofdevelopment policy.8 This has beenassociated with a commitment tochanging the provision of donor aid, based on a “partnership approach”and the “ownership” of reform by localactors, aiming to improve coordina-tion of aid, moving toward a harmo-nization of procedures and eventualalignment of donor assistance withnational partners’ policies and sys-tems.9

However, although there is a polit-ical commitment to “human rights,democracy and the rule of law” in the Millennium Declaration, humanrights issues are not explicitlyaddressed in its more specific, quanti-fied, and timetabled goals. Challengedto justify how justice sector supportcan contribute to poverty reduction,donors drew on studies to demonstratethe importance of functioning, fair,and accessible justice institutions incombating poverty. The World Bank’s2000 Voices of the Poor report high-lighted lawlessness and fear of crimein individual descriptions of the experi-ence of poverty. The negative roleplayed by the police in these accounts—corrupt and politically repressive,harassing small traders and targetingminorities—was striking.10

Lesson-learning exercises, includ-ing comparative research by theInternational Council on HumanRights Policy, showed the failings of donors’ approaches to date.11 Thecouncil’s report set out a strategicapproach with clear messages:

• Start from the beneficiary perspec-tive, fostering local ownership ofreform, using participatory needsassessments.

• Adopt a rights-based approach,emphasizing the legal enforce-ment of human rights claims, therole of institutions in respectingstandards, and the positive dutiesof the police, prosecutors, courts,and others to protect the rights of victims, prisoners, and thegeneral public.

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Human rights issues are

not explicitly addressed in the

Millennium Development Goals.


• Recognize that justice is a sectorand not a set of separate institu-tions—this requires strengthen-ing links and improving coordi-nation, including with civil socie-ty bodies.

• Give priority to the needs of poor, vulnerable, and marginalizedgroups, by enhancing their accessto justice, tackling discrimina-tion, ensuring minority participa-tion, recognizing indigenous sys-tems, and paying attention towomen’s rights.

• Improve the effectiveness of the aidrelationship, including trans-parency in donor agendas, recog-nizing the long term process ofjustice reform, providing flexibleresponses, respecting local priori-ties, and avoiding imported solu-tions.

In response, most donors areamending their policy orientations.The UK Department for InternationalDevelopment (DFID), with a history ofsupport for policing activities, has rad-ically transformed its policy, puttingthe experience of insecurity and injus-tice at the center of its analysis, andhighlighting the need for a sector-wideperspective.12 Two large-scale pro-grams in Africa, designed to conformto this new policy, have been in placefor a few years, and more are beingdesigned. The Malawi Safety, Securityand Access to Justice Programme(MaSSAJ), which started in 2002 with£35 million (U.S. $67m.) for the firstfive years, and the Nigeria Access to

Justice Programme, with £30 million(U.S. $57m.) approved in 2001 for aperiod of seven years, are attempting to move away from an institutionalapproach, emphasizing sector-widepolicies and coordination, and payingparticular attention to research and theperspective of the poor.

The UNDP’s “Access to Justice forAll” policy also prioritizes people’sequal ability to use justice services—regardless of their gender, ethnicity,religion, political views, age, class, disability or other sources of distinc-tion.13 The World Bank too has adopt-ed “access to justice” as one of threestrategic objectives, in addition to legaland judicial reform.14 This coversimproving access to existing services,expanding access by encouraging non-traditional users and the use of new dispute resolution mechanisms, orcreating new legal standing. The Banknow explicitly recognizes that memberstates have human rights obligationsand that they can be assisted in fulfill-ing them—a major change from earli-er attitudes to human rights, describedas lying outside the Bank’s mandate.15

In programming terms, this newapproach is illustrated by grants in 14African countries to support gender-responsive legal reform processes.

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Donors need both to promote national

leadership and be politically astute.


The new agenda in practiceBut how well are donor agencies apply-ing these new policy statements inpractice? The fundamental principle of the current “aid effectiveness” agen-da is that donors should promotedomestic leadership and ownership of reforms. This is not easy to achievegiven, first, the vast needs of Africa’schronically under-resourced justicesector; second, the continent’s highaid-dependency (in some countries,donor funding accounts for 50 percentor more of public expenditure); andthird, the gap between the resourcesavailable to donors and those of theirnational partners. In these circum-stances, donors easily become exces-sively influential in deciding what tosupport—and governments can just aseasily forgo their own responsibilities.

Five key challenges to improvedonor support to justice reform inAfrica are:

1. Sustainable interventions. Some ofthe pitfalls of current donor projectsare illustrated by European and Britishsupport for an initiative to address thebacklog in homicide cases in Malawi.Court backlogs had increased consid-erably following the 1995 introductionof a jury trial system. In 1999, donorscovered the costs of accommodation,allowances, and transport for all thoseinvolved in tackling the problem—judicial, police, and prosecution per-sonnel, legal representatives, jurymembers, witnesses, and a doctor.This support was to be temporary, butby 2003 an independent evaluationidentified an excessive reliance onexternal resources. Government fund-ing for processing homicide cases had

effectively ceased and the donor initia-tive had not, by then, led to the cre-ation of an improved and sustainablemechanism for continuity after theproject’s end.

2. Adopting a sectoral approach. Onechallenge in deciding how best to useaid lies in the sheer complexity of justice systems, with a multitude ofinstitutions from both state and civilsociety keen to preserve their inde-pendence and benefit individuallyfrom resources that may become avail-able. Initiatives in Uganda have shownthe benefits of a sectoral approach tojustice work. In the Masaka District,pilot mechanisms for inter-agencycoordination between local criminaljustice agencies—such as monthlymeetings of a “case management committee”—have yielded low-costimprovements, which are now inspir-ing reform in other countries. A rangeof Ugandan institutions came togetherin 1999 to create a Justice Law andOrder Sector (JLOS) with a joint strate-gy and investment plan approved as part of the country’s PovertyEradication Action Plan. Donor assis-tance is provided in a manner thataims to respect this national leader-ship: through the national budget to which some donors directly con-tribute, or by funding only projects that fall within the national strategy.More recently, in Kenya, 11 donorsestablished a group to adopt a similarlycoordinated approach.

3. Understanding the context. Buteven if assistance is designed in a manner that backs “sector-wide” initiatives, rather than financially

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unsustainable institution-based activi-ties, donors still need to learn to go beyond “technical” solutions andunderstand the context for intendedreforms. A particular difficulty lies inthe inherent conservatism of justicesystems and the politically sensitivechanges that might be needed. In many African countries, executivesremain dominant, with relativelyweaker parliaments or judiciariescharged with upholding checks andbalances. Justice sector reform aimedat increasing judicial impartiality orpublic accountability can pose a threatto the powerful: independent reviewsand opinions are not welcomed when,for example, presidents attempt con-stitutional change to lengthen theirterms in office. Police are often calledon at election time to serve their polit-ical masters rather than the public.Indeed, the courts and police are oftenidentified in surveys as among themost corrupt institutions. Clearly,tackling government-wide corruptionrequires that these institutions becleaner and more effective.

Yet too often donors still fail to account for the political aspects of this work and talk of national “ownership” of democratic reform can sound naïve in such environ-ments. Thomas Carothers cites the“politically treacherous” example ofconstitutional reform assistance in Zambia. Rather than following the recommendations of the (donor-supported) Constitutional ReviewCommission, President FrederickChiluba imposed a provision to dis-qualify his main rival, KennethKaunda, from the 1996 elections, and

had the Constitution approved by theNational Assembly, which he con-trolled, thus avoiding the Commissionand the need for a referendum.16

The lesson is that donors need both to promote national leadership and be politically astute.

4. Involving non-state actors.Nationalownership of reform is still oftenunderstood to refer to government own-ership—and the considerable fundingrequired to make significant changesoften leads to state-centric assistance.

Yet, any examination of the experienceof poor and excluded persons access-ing justice in Africa must concludethat formal state institutions may notbe the most relevant. More than 80percent of disputes in Africa are saidto be resolved through non-state sys-tems, such as chiefs—but only a fewdonors (such as the German GTZ)have taken this seriously. Malawi forexample has a predominantly ruralpopulation of nine million, yet thereare only about 300 lawyers, mostly inthe urban centers, and only nine of thecountry’s magistrates have had profes-sional training. By contrast, there areat least 24,000 customary justiceforums.17 DFID’s MaSSAJ program isnow piloting “primary justice” initia-tives—improving linkages between

9Justice Initiative


Rule of law aid providers “tend

to underestimate the challenges”

and “seem determined to repeat

mistakes made in other places.”

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the formal and informal systems, and enhancing skills and accountabili-ty of non-state structures.

5. Improving donor habits and incen-tives. Ultimately, few efforts are likelyto succeed unless donors pay closerscrutiny to the way in which aid isdelivered. In the words of ThomasCarothers, rule of law aid providers“tend to underestimate the chal-lenges” and “seem determined torepeat mistakes made in otherplaces.”18 Examples of bad practicethat could easily have been avoidedabound, such as, in several WestAfrican countries, where training forcourt stenographers was providedbefore systems had been establishedto guarantee their positions andsalaries.

Why is this the case? A recentreview of Swedish governmental aidconcludes that “[m]any actors in thelegal arena are unwilling to acceptgeneral development co-operationexperiences.”19 Even if the tendency tocopy laws or attempt the wholesaleimportation of legal systems fromabroad is on the decline, many of thelessons and policy imperatives learnedalong the way are still undermined inthe actual implementation due to thedominance of legal experts fromNorth America or Western Europewho do not necessarily possess eithera background in development or expe-rience of Africa. These skills are need-ed, however, if the challenges listedabove are to be met. Even better wouldbe greater reliance on African expertsand starting from locally developedinitiatives.

Incentive structures within donoragencies too can affect the quality andtimeliness of aid. There is often pres-sure to spend money quickly—some-times on large conferences or otherevents viewed as prestigious for seniorcolleagues at headquarters, or onstudy tours to the donor country fordiplomatic or other political reasons,even when experience from otherdeveloping countries might be morerelevant. Delays are caused for inter-nal bureaucratic reasons, for examplewhen donor agency staff move on to new assignments at key stages inproject development. The broaderincentive schema within the aid sys-tem too can be counter-productive.Rivalries still arise between different“models” offered by donors based ontheir own domestic legal and judicialsystems. Simple regular sharing ofinformation regarding funded activi-ties with government and otherdonors does not always happen.

Looking into the future, justice sector reform in Africa must be seenas a pro-poor, long term, developmen-tal endeavor that contributes to therealization of human rights. However,significantly more effort needs to beput into providing aid in a mannerthat takes into account good develop-ment practice, and in elaborating the tricky concept of national owner-ship, grounded in a proper under-standing of African realities. If theseapproaches were carried out morefully, donors would truly be living upto the new agenda.

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Notes

† Laure-Hélène Piron is a research fellow withthe Overseas Development Institute.

1 The term “justice sector” is used here in abroad sense, comprising not just the judiciary,lawyers, and justice and interior ministries, butalso police, prosecutors, prisons systems,human rights bodies, non-state mechanisms(e.g. chiefs), and civil society organizationsinvolved in justice work.

2 Source: OECD DAC country commitmentsfor legal and judicial development in Sub-Saharan Africa. These figures should be takenas indicative only.

3 World Bank, World Bank Initiatives in Legaland Judicial Reform, 2004 Edition, World Bank,Washington, D.C., 2004.

4 Laure-Hélène Piron and Julius Court,Independent Evaluation of the Swiss Agency for Development and Cooperation Human Rightsand Rule of Law Documents, OverseasDevelopment Institute, London / Swiss Agencyfor Development and Cooperation, Berne,November 2003.

5 Stephen Golub, “Battling Apartheid, Buildinga New South Africa” in Mary McClymont andStephen Golub (eds.), Many Roads to Justice: theLaw-Related Work of Ford Foundation GranteesAround the World, Ford Foundation, New York,2000.

6 World Bank, Can Africa Claim the 21stCentury?, World Bank, Washington, D.C, 2000,71.

7 Office of Democracy and Governance, USAIDAchievements in Building and Maintaining theRule of Law, Occasional Papers Series,November 2002, 136-8.

8 United Nations, United Nations MillenniumDeclaration, Resolution adopted by the GeneralAssembly, A/Res/55/2, 2000 and UnitedNations, Road Map Towards the Implementationof the United Nations Millennium Declaration,Report of the Secretary General, A/56/326,Annex: Millennium Development Goals, 6September 2001.

9 United Nations, Report of the InternationalConference on Financing for Development,Monterrey, Mexico, 2002.

10 Deepa Narayan et al., Voices of the Poor: CanAnyone Hear Us?, World Bank, Washington,D.C. / Oxford University Press, New York,2000.

11 International Council on Human RightsPolicy, Local Perspectives: Foreign Aid to the JusticeSector, Geneva, 2000. See also Harry Blair andGary Hansen, Weighing in on the Scales of Justice:Strategic Approaches for Donor-supported Rule of Law Programmes, USAID Program andOperations Assessment Report no. 7, 1994, and K. Biddle, I. Clegg, and J. Whetton,“Evaluation of ODA/DFID Support to the Policein Developing Countries: Synthesis Study,”School of Social Sciences and InternationalDevelopment, University of Wales, Swansea,1998.

12 Department for International Development,Justice and Poverty Reduction: Safety, Security andAccess to Justice for All, London, 2000.

13 United Nations Development Programme(UNDP) Access to Justice for All and Justice SectorReform, BDP Policy Note presented at UNDPAccess to Justice Workshop, Oslo, March 2002.

14 Legal Vice Presidency, Legal and JudicialReform: Strategic Directions, World Bank,Washington D.C., 2003, 45

15 Legal Vice Presidency, 46.

16 Thomas Carothers, Aiding DemocracyAbroad: the Learning Curve, CarnegieEndowment for International Peace,Washington, D.C., 1999, 162-3.

17 Wilfred Schärf, “Non-state Justice Systems inSouthern Africa: How Should GovernmentRespond,” paper prepared for the UKDepartment for International Development,2003.

18 Carothers, 176.

19 Swedish International Development Co-operation Agency (Sida), Swedish DevelopmentCooperation in the Legal Sector, Sida, 2002, 12.

Under the Abacha regime, Nigeria’s policehad a reputation for corruption and vio-lence. After six years of reform, InnocentChukwuma† examines how much more is needed.

Police corruption and abuse plaguedlife under General Sani Abacha’styrannical rule until mid-1998.Almost seven years after Abacha’sdemise, questions over police account-ability and effectiveness continue tolinger. Few institutions have a greaterimpact on the daily life of citizens than law enforcement, yet relationsbetween the police and citizens inNigeria continue to be characterizedby suspicion and mutual hostility.

The inauguration of PresidentObasanjo’s government on May 29,1999, marked the advent of electedcivilian rule in Nigeria. At the time,the Nigeria Police Force numberedabout 138,000, servicing a country of over 120 million. Motivation waslow: salaries were poor and not paidpromptly, and promotions were rare,with officers frequently stuck at thesame rank for upwards of 10 years.Internal and external accountabilitywas either weak, ineffective, or non-existent. Citizens’ contact with thepolice was almost entirely involuntary,restricted to law enforcement encoun-ters. In the midst of all this, violentcrime was on the rise across the country.

Under civilian rule, governmentand police authorities made efforts to

boost police morale, enhance account-ability and effectiveness, check corrup-tion, and increase community cooper-ation. Yet five years later, it remains tobe seen how far these measures can goin turning the police into an account-able, service-oriented institution.

Among the first efforts was the fed-eral government’s adoption of a fiveyear development plan for the police,beginning in 2000. The plan aimed to increase policing capacity throughrecruitment and improvement ofpolice welfare and powers. Under theplan, a massive recruitment drive waslaunched, which has increased policeranks to 320,000 in four years.Salaries were increased by over 30 percent and are now paid on time. A Police Service Commission (PSC)has, since November 2001, promotedover a hundred thousand officers—mostly those undeservedly neglectedby the Abacha government. The PSC,in collaboration with the Centre for Law Enforcement Education inNigeria (CLEEN) and the Open SocietyJustice Initiative, has also developedguidelines on police conduct duringelections, and monitored police behav-ior in the 2003 general elections.

Internally, the police authoritieshave adopted measures to eliminatecorruption in the force and bring thepolice closer to the community theyserve. On assuming office in March2002, Nigeria’s Inspector General ofPolice, Tafa Balogun, adopted an eight-

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The Future of Police Reform in Nigeria

point priority agenda for his adminis-tration, which included an anticorrup-tion drive and community partnershippolicing. The police subsequentlymounted a vigorous campaign againstcorruption in the force, which has ledto daily arrests and dismissals of patrolofficers caught extorting members ofthe public. Similarly, the NigeriaPolice Force has developed a strategicplan for community policing, which iscurrently being piloted in Enugu State,east Nigeria.

While welcome, these new policiesand programs have not significantlyaltered the behavior of officers on the streets in Nigeria, nor has publicperception of the police improvednoticeably. On a daily basis, citizenscontinue to complain of human rightsabuses by police, including extortion,brutality, torture, and even extra-judi-cial killings.

It is therefore imperative that thegovernment and police authorities re-examine the reform policies andstrategies implemented in the last fiveyears. A cursory look shows numerousshortcomings. For instance, the fiveyear plan to recruit an average of40,000 police personnel per year was not preceded by an assessment of the capacity and preparedness ofthe eight police colleges and traininginstitutions in Nigeria to absorb andeffectively train this many recruits.A more careful assessment wouldhave revealed that these institutionsdid not have the capacity to take onsuch a task effectively. The schoolswere stretched to breaking point andadopted a training method described

by one college director as “garbage in, garbage out.” A new wave of thesegraduates hits the streets every sixmonths and swells the ranks ofhuman rights abusers on the beat.

Furthermore, with the possibleexception of the trial community polic-ing program now underway in EnuguState, reform measures have focusedmore on the capacity of police to con-trol the citizenry rather than to servethem. This perhaps explains why

internal and external accountabilitymechanisms such as the PSC and a Public Complaints Bureau areunderfunded and enjoy little supportin the discharge of their functions.

Finally, and more fundamentally,reforms are taking place within thecontext of a continued governmentcredibility gap ever since the flawedelections of 2003, as well as ongoinguncertainty over the future role of themilitary, an economic depression thathas forced millions out of work, perva-sive corruption among top governmentfunctionaries, and violent ethnic andreligious disputes.

Given the present situation, CLEENadvocates the following steps toimprove the process of police reform:



New policies and programs have

not significantly altered the behavior

of officers on the streets in Nigeria,

nor has public perception of the

police improved noticeably.

Ten years into transition, the South Africanpolice are still struggling to gain society’sconfidence. Rising reports of crime andpolice abuse despite falling figures reflectthe mixed results of accountability effortsto date, argue Cheryl Frank and Sean Tait.†

Democracy was definitively pro-claimed in South Africa’s 1994 elec-tions, but democratic transition is, byits nature, an ongoing process, oftenfraught with difficulties. In policing,the primary goal of longer-termdemocratization was defined early on as the transformation of SouthAfrica’s “police force” into a “policeservice”—shifting their role from thatof an organ of state repression into aneffective servant of the safety and secu-rity needs of the new, reconciled rain-bow nation.

During 10 years of transition, manyactivities, policies, and programs have

been employed toward this goal, rang-ing from new ideas, such as commu-nity policing, to large scale retraininginitiatives, to the development ofentirely new management structures.Yet today South Africans continue to speak of strategies to deepen ourdemocracy and strengthen the struc-tural arrangements of our institutions,notably the police. This objective pro-vides the context for the critical imper-ative to promote and strengthen policeaccountability. One scholar character-izes the continuing debate on policeaccountability in South Africa as aconversation weaving together variousperspectives on policing, which servesdiffering priorities at different stagesof South Africa’s history.1

What function does this ongoingdebate serve at this moment in time?

• The government should place acap on further recruitment andinstead immediately launch aprogram of retraining for allthose recruited in the last fouryears.

• Accountability processes andmechanisms should be givengreater political support and ahigher priority in police budg-eting.

• Investments in social and eco-nomic measures for crime pre-vention should be increased inorder to make community polic-ing more effective in buildingpartnerships between the policeand the communities they servein Nigeria.

Notes

† Innocent Chukwuma is executive director ofthe Centre for Law Enforcement Education inNigeria (CLEEN).

14 Open Society

Police Transformation andAccountability in South Africa


Currently, two central topics of debatestand out: effectiveness—the ability ofthe police to render the service expect-ed of them; and accountability—thecompliance of the police with agreedcodes of conduct, the rule of law, andthe policies of their own organization.This article briefly explores some of thekey issues and questions facing policeaccountability in South Africa today.

Challenges for policing and accountabilitySouth Africa is a long way from elimi-nating the abuse of police powers.These include torture and excessiveuse of force, both of which persist,albeit on a much reduced scale fromthe flagrant violations of the apartheidyears. An Amnesty International sur-vey on police practice in SouthernAfrican countries between 1997–2002reported that several hundred deathsoccur in police custody or “as a resultof police action” in South Africa eachyear. The majority of these deathsresulted from the use of force or torture by police, mostly at the time of arrest.2

In an apparent paradox, however,actual instances of police abuse arefalling even while complaints of abuseare rising. According to the Institutefor Security Studies (ISS), deaths incustody and as a result of police actionwere lower between April 2001 andMarch 2002, than during the sameperiod of 2000-01. In 2001-02, 585people died in police custody or as a result of police action, compared to687 the previous year, a decline of 15 percent. The figure dropped againin 2002-03, to 217. Nevertheless, com-

plaints against the police rose dramat-ically from 1,999 in 1997-98 to 5,675in 2001-02, an increase of 184 per-cent. This is interpreted by the ISS as a positive indicator, demonstratinga new public confidence in challeng-ing the police.3 Nevertheless, if this is the case, it has not resulted in anincreased sense of public security.

Accountability and oversight architecture in South AfricaPolice reforms implemented in SouthAfrica since 1994 have created multi-ple accountability mechanisms at different levels of government and in local communities. Today, SouthAfrica has a number of structures,both political and bureaucratic, thatare formally responsible for policingoversight and accountability. Theseinclude the Independent ComplaintsDirectorate (ICD), the national andprovincial Secretariats for Safety and Security, and the ParliamentaryPortfolio Committee for Safety andSecurity.

Despite this impressive architec-ture of oversight agencies, in practicea range of concerns have presentedthemselves. Limited efforts to coordi-nate functions and activities haveresulted in the duplication of some



Despite and impressive architecture of

oversight agencies, in practice a range

of concerns have presented themselves.

services, and little communication andfollow-up in relation to referred cases.4

Capacity limitations within oversightstructures also impact the quality andquantity of oversight work. Many ofthe cases referred to the ICD, with theexception of deaths in custody, arereferred back to the police for investi-gation and there is limited capacity tomonitor these investigations.5 A poor

interface between the ICD and theNational Prosecutorial Authority(NPA) results in weak feedback con-cerning cases referred by the ICD tothe NPA for prosecution. Nor are thepolice compelled to report back tooversight agencies on their compli-ance with recommendations made bythese agencies. The result is that thereis little scope to evaluate the impact ofthe work of many of these bodies andlittle opportunity to build confidencein communities that “bad apples”within the police are being disciplined.

The actual impact of this institu-tional framework of police accounta-bility is increasingly challenged by theneed to improve police services andefficiency. One observer identifies the key to democratic reform as, first,reorienting the police toward an

understanding of the policing needs of the general public, and then moti-vating and supporting the police inmeeting these needs.6

Crime rates and policing policy choices South Africa’s transition to democracyhas been characterized by markedlyrising crime rates—a pattern alsoobserved in other transition countries.Media and public pressure on the gov-ernment to respond has led to a politi-cally-driven tough-on-crime approach.Alongside the state’s criminal justicemeasures, such as minimum manda-tory sentencing and stricter bail condi-tions, the South African Police Service(SAPS) introduced their own contro-versial crime-combating strategy in2000, at the expense of more rights-friendly attempts to address crimeespoused in earlier policy statements,such as the National Crime PreventionStrategy (1996) and the White Paperon Safety and Security (1999).

The SAPS Crime CombatingStrategy, commonly termed “OperationCrackdown” identified those police sta-tions with the highest crime rates andset about stabilizing their catchmentareas. The rationale was that once thishad been achieved, it would be possi-ble to undertake “normal” crime management. Implementation of thenationally directed strategy involvedinvestigations, surveillance, cordonand search operations, roadblocks,and similar measures. However, thisapproach is at variance with the prin-ciples of community policing—ofunderstanding and responding tolocal community needs. In fact, this

16 Open Society


In an apparent paradox,

actual instances of police abuse are

falling even while complaints of

abuse are rising.

centrally driven approach is more akinto the old apartheid-style policing ofthe 1980s. As a result, despite animprovement in crime statistics over-all, victim surveys show that SouthAfricans are now more afraid of crimethan ever before.

The 2002-03 statistics released bythe SAPS seem to indicate a levelingoff of crime figures. Since 1994, theincidence of murder has decreased by30.7 percent, and rape is at its lowestlevel since the establishment of theSAPS in 1994-95. There has also beena significant decrease in high profilecrime such as aggravated robbery, thehijacking of motor vehicles, and bankand cash-in-transit robberies.7 This issupported by the 2003 ISS VictimSurvey, which measures a 2.5 percentdrop in the crime rate since 1998.Feelings of safety, however, have alsodeclined and are considered low incomparison with other countries. TheISS points out that this does not corre-late with actual crime statistics,although it does reflect the increase incomplaints, and highlights the need towork with communities and citizensin identifying safety concerns andseeking to address them.8

Challenges for civil society During 10 years of transition, the roleadopted by civil society organizationshas also undergone fundamentalchange. Just prior to, and in the periodafter, the first democratic elections in 1994, civil society organizationsadopted an optimistic attitude ofengagement with government andsought to support and enable the tran-sition process. This engagementassisted in the development of South

Africa’s oversight infrastructure, andreinforced the range of policies andprograms developed to transformpolicing. More recently, however, civilsociety organizations have begun toask whether they need to disengagefrom this supportive role in order tostrengthen their independent capacityto push for accountability. These ques-tions have been raised as civil societyhas experienced increasing policeresistance to external scrutiny, anddecreasing access to police-held infor-mation. Despite these challenges, the creation and consolidation of effec-tive and accountable state law enforce-ment capacity remain priorities forcivil society groups.

The Open Society Foundation forSouth Africa and the Open SocietyJustice Initiative recently established a project to enhance civilian oversightof policing in South Africa. The inter-vention is unique in that its activitieshave been constructed on the basis ofbroad stakeholder input and are beingundertaken by organizations alreadyactive in the field. The project aims to promote policing in South Africaconsistent with the spirit and the provisions of the Constitution ofSouth Africa. This is to be achievedthrough strengthening the structuresand processes for civilian oversight of the police. In part, the project hopesto expand the oversight role frommerely reacting to complaints to con-ducting proactive research and analy-sis of patterns and practices. The coop-eration and interaction between over-sight agencies will be improved byconcentrating on intervention areasthat involve several or all agencies.Ultimately the impact will not only



18 Open Society

Vivek Maru† examines how a project providing paralegal assistance can helpaddress the colonial legacy of “decentral-ized despotism” in Africa.

Law in most African countries is bifur-cated: formal legal systems inheritedfrom the former colonial powers coex-ist with “customary” legal regimesderived from traditional approaches tojustice. This legal dualism poses chal-lenges for law reform across the conti-nent. I would like to describe a few ofthose challenges, in particular as they

arise in Sierra Leone, and to sketch theway in which a community legal serv-ices program there is attempting tograpple with them.

The dilemmas of African customary lawCustomary institutions deserve adegree of autonomy and respect. Theyhave roots in cultural traditions and,for many in rural Africa, are the mostaccessible institutions. On the otherhand, the same institutions are theo-

The Challenges of African Legal Dualism: an Experiment in Sierra Leone


be a police service protective of thehuman rights and dignity of all, but amore effective and professional policeservice that enjoys good relations withthe community.

Further Reading

Legget, T. et al, “Criminal Justice in Review2001/2002,” Monograph 88, November 2003,Institute for Security Studies, Pretoria.

Notes

† Cheryl Frank and Sean Tait are, respectively,director and senior program officer of theCriminal Justice Initiative at the Open SocietyFoundation for South Africa.

1 Van Der Spuy, discussion on police accounta-bility, held by the Open Society Foundation forSouth Africa and the Open Society JusticeInitiative, Johannesburg, 2002.

2 Amnesty International, Policing to ProtectHuman Rights, A Survey of Police Practice inCountries of the Southern African DevelopmentCommunity, 1997-2002, Amnesty InternationalPublications, London, 2002.

3 Institute for Security Studies, National VictimSurvey 2003, Pretoria, 2003. See www.iss.co.za.

4 Open Society Foundation for South Africa and Open Society Justice Initiative, Report:Civilian Oversight and Monitoring of the Police In South Africa, June 23-24, 2003. Seewww.justiceinitiative.org.

5 See Independent Complaints Directorate,Annual Report 2002/2003, Ministry of Safety andSecurity, Pretoria, 2004.

6 David Bruce, Democratic Reform of the Police –Any lessons for Kenya from South Africa?, 2003.Paper presented at the Roundtable Conferenceon Police Reform in East Africa, Police as aService Organisation: An Agenda for Change,Nairobi, April 24-25, 2004.

7 South African Police Services, Annual Report,Ministry of Safety and Security, Pretoria, 2004.

8 Institute for Security Studies, 2003.

retically subordinate to national con-stitutions and—although this is morecontentious—international humanrights law. The line between autonomyand subordination is difficult to draw.

That said, it would be too simple toconceive of the challenges of legaldualism exclusively in terms of oppo-sition between human rights andAfrican culture. Ugandan political sci-entist Mahmood Mamdani situatespresent-day customary law in the history of colonialism. In particular,Mamdani focuses on the colonial strat-egy of indirect rule. The kernel of thatstrategy was to rule rural Africa byproxy, first subjecting African chiefs tocolonial authority and then enhancingthe power of those chiefs over theirown people.

Under this system, chiefs becameboth law-makers and law-enforcers,and they used customary law to carryout colonial demands and to practiceexploitation of their own by means of excessive fines, forced labor, andarbitrary decisions. Mamdani arguesthat the legacy of indirect rule contin-ues to this day in the form of a despot-ic African countryside, in which toomuch power is concentrated in thehands of chiefs. According to thisview, independent African states—the inheritors of colonial authority—have failed to confront, indeed haveoften taken advantage of, this legacy of despotism.1

Dualism and justice in Sierra Leone There is evidence to suggest thatMamdani’s analysis is relevant in con-temporary Sierra Leone. One scholar,Arthur Abraham, concluded that the

transformation of Sierra Leone’sMende chiefs from sovereign but limited kings into colonial agents “put chieftaincy out of the reach of tra-ditional sanctions,” such as the rightof subjects to depose their chiefs.“[T]he traditional democratic basis of Mende chiefship was radically

undermined.”2 The colonialists desig-nated “chiefdoms” as the primaryadministrative units in the country-side and “paramount chiefs” as theirrulers. Since Sierra Leone’s politicalindependence in 1961, governmentsof both major political parties haveused paramount chiefs, as they arestill called, to consolidate and main-tain power. What Abraham wrote in1978 remains true: “Every governmentin the post-colonial period has notonly pledged itself to uphold the insti-tution of chieftaincy, but has used it asthe basis for local support.”

The 1896 ordinance that first madeSierra Leone a British protectorateestablished “courts of the nativechiefs.” The same institutions arelegally recognized today—thoughrenamed “local courts”—as arbiters of customary law. Reforms in the late colonial period replaced para-mount chiefs with court chairmen as the heads of these courts,3 but those chairmen are still appointed byparamount chiefs for approval by the



The legacy of indirect rule continues

to this day in the form of a despotic

African countryside.

20 Open Society

local government ministry. In practice,customary law is also administered by lesser “village” and “section”4 chiefsalthough these are not recognized by statute. Customary law varies byethnic group, and is uncodified.

The formal legal system, mean-while, is concentrated in Freetown, the nation’s capital. Of a total of tenmagistrates, five sit in Freetown while

the other five rotate among 12 provin-cial magistrate courts. Of 11 high courtjudges, 10 presently sit in Freetownwhile only one is assigned to rotateamong the provinces. Most chiefdomshave branch offices of the Sierra Leonenational police in addition to “chief-dom” police officers, who serve the cus-tomary institutions. Law requires thatcrimes punishable by more than sixmonths’ imprisonment be dealt withby the national police and the formalcourts, though such jurisdictionalboundaries are not always adhered to.Of the two overlapping legal regimes,customary law has more practical rele-vance for the vast majority of SierraLeoneans than the formal legal system.

Mamdani’s structural concern thatcustomary law is controlled by overlypowerful chiefs may be related to several other challenges posed by

customary law in Sierra Leone.Substantively, customary law some-times conflicts with human rights.Among certain ethnic groups, a girlcan be betrothed without her consentbefore she reaches puberty.5 Womenare also generally disallowed frominheriting family property.6 Customarylaw is supposed to comply with thenational constitution and it should not,according to the 1963 Local Courts Act,contradict “enactments of parliament”or “principles of natural justice andequity.” But these nominal limitationsare seldom, if ever, enforced.

Moreover, customary law is oftenapplied unfairly. Favoritism and exces-sive fines are common. In Bumpeh-Gao Chiefdom in the SouthernProvince, I watched as two fines, eachfor 10,000 Leone (U.S. $3.50), werelevied against a witness—someonewho was in principle assisting thecourt in its work—within the course of half an hour. The reason was thatthe witness spoke a one-word answerto a question asked of him before thecourt clerk had finished recording thequestion in his languid handwriting.

Among the causes of both substan-tive and procedural unfairness is alack of independent review. Within thechiefdom, few but the paramountchief and elders favored by him haveany power over the functioning oflocal courts. This may be symptomaticof the concentration of power thatMamdani highlights. There is a theo-retical right to appeal from local courtsto the formal legal system but in practice such appeals are quite rare.There is also one national “customarylaw officer” with the power to super-

Of the two overlapping legal regimes,

customary law has more practical

relevance for the vast majority of Sierra

Leoneans than the formal legal system.



vise local court chairmen and reviewlocal court decisions. This form of review may not qualify as independ-ent because the law officer is a mem-ber of the executive rather than judi-cial branch. Even assuming adequateindependence, the same person dou-bles as the only public prosecutorworking in the provinces: his time isstretched thin.

The background for all of theseproblems is severe poverty and lack of infrastructure. Weak education and health care systems, poor roads,paucity of clean water, and substantial unemployment place this post-conflictnation right at the bottom of a list of 177 countries ranked in the UnitedNations Development Program’shuman development index.

Community-based paralegalsWhere should law reform begin in thissituation? How does one begin toserve the people who live under thissystem? The Open Society JusticeInitiative and the Sierra LeoneanNational Forum for Human Rights areundertaking an experimental effort to provide basic legal services in fivechiefdoms in Sierra Leone. The idea isto work primarily through communi-ty-based paralegals—as they are provi-sionally called—rather than throughlawyers. There are only 100 or solawyers in the country, less than 10 ofwhom are outside the capital and itsvicinity. Moreover, lawyers are notallowed to appear in customary courts.The paralegals come from the chief-doms where they work and havegrown up under customary law, butare given training in (mostly) formallaw as well as in the workings of gov-

ernment. Their methods are diverse.For individual justice-related prob-lems, the paralegals provide informa-tion on rights and procedures, medi-ate conflicts, and assist clients in deal-ing with government and chiefdomauthorities. For community-level prob-lems, paralegals advocate for changefrom above and assist in organizingcollective action from below. I am oneof two lawyers who supervise, train,and support the paralegal staff.

The project employs three distinctapproaches to reforming customarylaw and the dualist legal structure.First, the formal legal system is some-times invoked to check unfairness andexploitation in the customary system.Where local court decisions are severe-ly unjust, the project’s supervisinglawyers will lodge appeals in the for-mal court system to seek both redressfor the client and a precedent-settingruling. Sometimes, the very fact thatparalegals can speak the formal legallanguage and are associated with formal law is enough to inhibit would-be exploiters in the customary setting.For example, in June 2004, the SierraLeone Farmers’ Association was delay-ing sending seed-rice to a particularvillage in Kakua chiefdom. A paralegalwent with village leaders to visit the official who, it turned out, hadbeen holding out for a bribe. Our para-legal told us that the official trembledas soon as he saw “human rights” on the paralegal’s ID card. The ricewas soon delivered.

But we are not legal missionaries,banishing the darkness of customarylaw with the light of the formal legalsystem. Customary institutions, as


22 Open Society


noted, deserve respect both for theirtraditional origins and for their greateraccessibility and relevance to mostSierra Leoneans. A second reformeffort acknowledges this by working to improve the customary system fromwithin. Paralegals identify fair-mindedchiefs and elders who can assist withinternal advocacy. They hold commu-nity meetings to engage people in dialogue on justice issues in the chief-dom. When paralegals mediate localconflicts, they provide an alternativeand fine-free process that synthesizestraditional and modern approaches. A paralegal mediating between adelinquent child and a father who hasresorted to beating might, for exam-ple, begin with something from theConvention on the Rights of the Childand end with the ritual of a child placing his head on his father’s feet.We hope that as our paralegals gainrespect in their chiefdoms, their pres-ence will decentralize some of thepower that is now concentrated in thehands of the chieftaincy.

Finally, paralegals can serve asbridges between the two regimes. One effect of legal dualism is that ruralpeople are marginalized from andfearful of the structures of govern-ment and the formal legal system.Paralegals have assisted rape victims,for example, in pursuing prosecution

with the Sierra Leone Police (rape isoutside the jurisdiction of customarycourts). If the government is not pay-ing teachers in a particular communi-ty, paralegals will raise the issue withthe Ministry of Education.

Our hope is that these piecemeal,grassroots efforts will contribute to a reform of Sierra Leone’s dualist legalstructure that draws on the experienceof ordinary Sierra Leoneans andmeets their needs by combining thestrengths of the formal and customarylegal systems, rather than exalting one over the other.

Notes

† Vivek Maru is project manager for the OpenSociety Justice Initiative Paralegal Project inSierra Leone.

1 Mahmood Mamdani, Citizen and Subject,Princeton University Press, 1996.

2 Arthur Abraham, Mende Government andPolitics under Colonial Rule, Sierra LeoneUniversity Press, 1978, 303-11.

3 Paul Richards, Fighting for the Rainforest: War,Youth & Resources in Sierra Leone, InternationalAfrican Institute, 1996, 46.

4 The country’s 12 districts are each divided intochiefdoms, with an average of 12 chiefdoms perdistrict. Each chiefdom is in turn divided intoanywhere between 2 and 15 sections, and eachsection encompasses tens of villages.

5 Joco Smart, Sierra Leone Customary FamilyLaw, Atlantic Printers, 1983, 33. This is the mostrecent research available, but its conclusions areborne out by experience in the field.

6 Smart, 196.

Recently some African states have manipu-lated access to citizenship and the rightsthat follow from it in discriminatory ways,says Julia Harrington.† As the right thatdetermines access to most others, citizen-ship is in need of special monitoring.

Alassane Outtara and KennethKaunda were once heads of state.Judith Todd’s father was once primeminister of Rhodesia. Thousands offarmers in Mauritania and Côted’Ivoire used to own their own land.Now the politicians are barred fromstanding for office, Judith Todd haslost her right to vote in the country of her birth, and the smallholders are landless refugees and displacedpersons.1 The rights lost are diverse, as are the parties who suffer them, but the losses flow from a single legaldisability: deprivation of citizenship.

In many states in Africa, citizen-ship is being manipulated and restrict-ed to deny rights to those whom thestate wishes to marginalize. The prob-lem is widespread, affecting over a dozen countries in all parts of thecontinent,2 yet few recognize that thesame scenario is being played out overand over. States are learning—manyby example—that a few simple legalmoves, unregulated by internationalhuman rights law, can dramaticallyshift power and stifle democracy.Human rights advocates, concentrat-ing on single countries or issues, often

miss a common thread connectingnumerous different rights violations:access to citizenship.

How and why has citizenship inAfrica now become so hotly contest-ed—a vehicle for exclusion and acause of wars? Perversely, among theroots of this dynamic are democratiza-tion and the greater pressures onstates to respect human rights andprovide social services.

The emergence of citizenshipnorms in postcolonial AfricaHistorically in Africa, “citizenship”—the guarantee of reciprocal rightsbetween an individual and a state—has been more a tool of politics than a vehicle for individual rights. Fewprecolonial African states had legalnotions of citizenship.3 In the colonialperiod, citizenship was still irrelevantfor most: individuals were subject to colonial states, but not as citizens.4

In some territories, classes of citi-zenship were created and political

EQUALITY AND CITIZENSHIP

Voiding Human Rights: Citizenship and Discrimination in Africa

In many states in Africa, citizenship

is being manipulated and restricted

to deny rights to those whom the

state wishes to marginalize.



24 Open Society


participation granted to a very few.Employing indigenous leaders tomaintain control over the population,colonial rulers attempted to codify eth-nic identities and assert the conceitthat each ethnic group had a territorial“homeland” or land of origin. But indi-viduals still moved freely within thevast swathes of colonial territory gov-erned by a single authority, and some-times even between different colonialterritories.5

At independence, most new statesgranted citizenship to those living inthe territory and followed their formercolonizers in their policies for thoseyet to be born. Thus, the constitutionsof former British colonies generallyprovided that those born within theterritory would receive citizenship (jus soli). Civil law states usually pro-vided for citizenship to be granted bydescent (jus sanguinis).6

Although legal citizenship wasthereby established, and African con-stitutions guaranteed the equality ofcitizens, few states conveyed to theirpeople the political rights generallyregarded as inherent in citizenshiptoday, such as to vote or to stand forelection.7 Nor did citizenship in mostcountries guarantee the right to many

public and social services. Thus stateshad little political or financial incen-tive to deny individuals citizenship.Postcolonial states made little effort topolice the possession of citizenshipthrough registration of births or otherdocumentation. Indeed, UNICEFfound that 70 percent of all births insub-Saharan Africa, and nearly onethird of all births in North Africa wentunregistered in 2000.8

In the past decade, however, the sig-nificance of citizenship has changedprofoundly, due to democratization,growing respect for human rights, andgreater pressure on African states toprovide basic social services.9 Citizensnow have, at least in principle, consid-erable rights and power. The majorityof African states hold multiparty elec-tions and the collective will of citizens,muted as it may be by flawed elections,is important in determining who con-trols the mechanisms of the state.10

State authorities are now legally com-mitted to protecting a wide range of citizens’ rights, set out in internationaland regional human rights treaties.11

However, the obligation to provideeven the most basic social servicesturns citizens into financial liabilities,walking bundles of potential entitle-ments that can lay claim to stateresources.

So was the current situation born:states can no longer legally deprivetheir citizens of rights, but they canshortcut their obligations by limitingthe very existence of citizens. Becauseinternational norms on the grantingand deprivation of citizenship andthose defining the rights of nonciti-zens are weak or nonexistent, states

The obligation to provide even the

most basic social services turns citizens

into financial liabilities, walking bundles

of potential entitlements.



can legally limit the number of indi-viduals to whom they guarantee keyrights. Remarkably, state actions to lift or limit citizenship are not pro-hibited by human rights law, despitetheir decisive impact on individualhuman rights.12 Legal arguments tocounter restrictive citizenship lawsmust therefore focus instead on theirdiscriminatory intent or effect.

Discrimination in access to citizenship and denationalizationCitizenship is one of the few groundsupon which arbitrary distinctionsbetween individuals are not inherentlyprohibited under international law.13

Conditions for gaining citizenship arestill almost entirely a matter for statediscretion.14 Additionally, when turn-ing individuals into noncitizens, orpreventing their access to citizenship,states routinely claim that these per-sons’ core right to have citizenship in at least one country is not thereby violated.15 For example, the govern-ment of Côte d’Ivoire, when it strippedcitizenship from individuals and forbade noncitizens to own land,defended these moves on the basisthat the persons affected could simplygo “back where they came from.”16

This notion of a “homeland” in anoth-er country is usually fictive, and makesdiscrimination perpetrated against dis-favored groups no less severe. InRwanda, the fact that Banyamulengerefugees from the DemocraticRepublic of Congo can theoretically getRwandan citizenship is of no use orcomfort to hundreds of thousands who are increasingly insecure and dis-enfranchised in the DRC, where theyhave lived for generations.17

Even where the de facto stateless arenot expelled, denationalization createsprofound marginalization and insecu-rity: it deprives individuals of the rightto reside permanently within theircountry and to political participation.Loss of citizenship may also restrictaccess to education and the right toenter certain professions.18 The atten-dant fear of deportation closes offvocal or legal protest for all but the

most courageous. Those who take the fight to the courts are unlikely to have the resources to complete theprocess, if they are not expelled in the meantime.19

In a continent with such a long his-tory of ethnically plural societies, anyattempt to restrict citizenship accord-ing to ethnic affiliation is already suspect. This suspicion is generallyconfirmed on examination: in prac-tice, the vast majority of new policychanges target a specific, disfavoredgroup for further marginalization.While most new citizenship legisla-tion and regulations appear nondis-criminatory, they often disproportion-ately affect specific populations. TheCongolese requirement that individu-als be able to trace their ancestors’ res-idence in the territory of present-dayDRC as far back as 1885 targetsKinyarwanda speakers, who generally

Even where the de facto stateless are

not expelled, denationalization creates

profound marginalization and insecurity.

26 Open Society


arrived after that date.20 The Ivoirianrequirement that one’s pedigree of“Ivoirité” be “validated” by village eld-ers disproportionately excludes ethnicDioullas.21

Alternatively, discrimination can be effected through the implemen-tation of laws, as in the case ofZimbabwe’s requirement that indi-viduals renounce all other possible

citizenship claims before gettingZimbabwean citizenship (usuallyapplied only to whites and those with“foreign” surnames).22 In Mauritania,those who lost their citizenship duringforced expulsion from the country in1989-90 were overwhelmingly black.23

What can be done?Through legal and political action,Alassane Outtara and KennethKaunda have now regained theirnationality. Judith Todd, after losing in the Zimbabwean Supreme Court, isappealing to the African Commissionon Human and Peoples’ Rights. Butfor millions not as wealthy, lucky, or powerful, second-class citizenship or statelessness and the attendant disabilities are a permanent condition.

To stop human rights violationsbeing perpetrated through citizenship

policy, a few simple steps will suf-fice—although states are sure to fighthard against them. Long-term successwill require coordinated efforts on thepart of human rights activists and theaffected populations.

First, citizenship needs to be recon-ceptualized as a prerequisite for theguarantee of fundamental rights ratherthan as an administrative nicety. Itscurrent status as an administrativedetermination belies its critical impor-tance. Consider that an individual can-not be imprisoned until the state over-comes a burden of proof “beyond rea-sonable doubt.” Yet although depriva-tion of citizenship may entail an equal-ly severe loss of rights, the burden ofproof in contested citizenship cases isplaced entirely on the individual,notwithstanding that states have fargreater (if not exclusive) access to thebureaucratic records often required toprove citizenship under new laws.

A second step is to recognize citi-zenship policy as a critical mechanismin perpetrating discrimination andundermining a wide range of rights.As such, it should be subject to scruti-ny by international human rightsmechanisms and international courts.The norms of antidiscrimination are well entrenched in numerousinternational instruments and providea basis for scrutiny of citizenship policy. In individual cases, it is easy to see how deprivation of citizenshipdirectly violates a wide range of an individual’s protected rights. TheAfrican Commission on Human andPeoples’ Rights has three times con-demned deprivation of citizenship,

Citizenship needs to be reconceptu-

alized as a prerequisite for the guar-

antee of fundamental rights rather

than as an administrative nicety.



twice in individual cases and once in the context of mass deprivation and expulsion.24

If these steps are taken—recogniz-ing the fundamental importance of citizenship in guaranteeing essentialrights, and opening up national citi-zenship policies to international scruti-ny—existing human rights mecha-nisms and advocacy can be brought tobear. In court, victim-plaintiffs mightargue that the legal burden of proof in cases of individual deprivation of citizenship should be shifted to thestate, given the administrative difficul-ties faced by individuals trying to provetheir citizenship.25

Full recognition of the importanceof citizenship might include advocat-ing that the administration of citizen-ship be handled by a body independ-ent of the executive branch of thestate, analogous to an independentelectoral commission. There are as yetno NGOs specializing in citizenshipadvocacy, as there are for women’srights, freedom of expression, andother human rights violations. Whileindividual instances of deprivation ofcitizenship do sometimes make theirway to the courts, this is a costly andtime-consuming process. An inde-pendent body to administer citizen-ship would not be immune to statemanipulation, but it might be moreaccessible than the courts.

International advocacy organiza-tions can respond to the manipulationof citizenship by giving citizenshipissues higher priority, recognizingthat attacks on land ownership, liveli-hoods, political participation, andother human rights often lie behind

citizenship policies. Most citizenshipcases concern discrimination at somelevel, and should be recognized andlitigated as such through the nationalcourts, with international resourcesand expertise brought to bear.

Where national-level mechanismsfail, regional and international onesshould be employed to the fullest. Themost far-reaching decision of theAfrican Commission was in the case

of Mauritania, where the commissionrecognized in 2000 that thousandshad been deprived of their citizenshipin a discriminatory way in 1989.26 Butthe Mauritanian government has yetto re-issue identity documents to theindividuals affected in accordancewith the decision. Nonetheless, allcurrent cases similar to the one inMauritania should be promptlybrought before the commission, andadvocacy must continue until its deci-sions are implemented.

Regional organizations, particu-larly the African Union with its clearmandate and multiple mechanismsfor conflict prevention, resolution,and peacekeeping, should recognizethe fundamental role that citizenshippolicies play in creating the conditionsfor conflict.

Manipulation of the citizenship

policies in Africa began quite recently

but has mushroomed in the past

decade to affect millions of individuals.

28 Open Society


Manipulation of citizenship poli-cies in Africa began quite recently buthas mushroomed in the past decade toaffect millions of individuals. Its pop-ularity must be partly attributed to the fact that citizenship falls outsidethe realm of existing human rightslaw and advocacy and so escapesscrutiny and legal challenge. Thehuman rights legal and political com-munities must remedy this neglectand help bring this innovative andpernicious form of rights violation toan end as quickly as it has developed.

Notes

† Julia Harrington is senior legal officer, equal-ity and citizenship, with the Open SocietyJustice Initiative.

1 Basildon Peta, “Activist Dodges Mugabe TravelBan,” The Independent, January 1, 2004, 11;Howard W. French, “Dagana Journal; WhereProud Moors Rule, Blacks Are Outcasts,” NewYork Times, January 11, 1996, A4; SominiSengupta, “Land Quarrels Unsettle IvoryCoast’s Cocoa Belt,” New York Times, May 26,2004, A3.

2 The Open Society Justice Initiative’s AfricaCitizenship & Discrimination Audit has identi-fied discrimination in access to citizenship ordiscriminatory denationalizations in the follow-ing countries: Botswana, Côte d’Ivoire, theDemocratic Republic of Congo, Egypt, Eritrea,Ethiopia, Kenya, Mauritania, Morocco, Nigeria,Sudan, Tanzania, Uganda, Zambia, andZimbabwe.

3 Jeffrey Herbst, “The Role of Citizenship Lawsin Multiethnic Societies: Evidence from Africa,”in Richard Joseph (ed.), State, Conflict, andDemocracy in Africa, Boulder: Lynne RiennerPublishers, 1999, 268.

4 See Mahmood Mamdani, Citizen and Subject,Princeton: Princeton University Press, 1996.

5 John Iliffe, Africans: The History of a Continent,Cambridge: University Press, 1995, 207.

6 Herbst, 271-273.

7 See T. Alexander Aleinikoff and DouglasKlusmeyer, Citizenship Policies for an Age of Migration, Washington, D.C.: CarnegieEndowment for International Peace, 2002, 45.

8 United Nations Children’s Fund (UNICEF),“Factsheet: Birth Registration, ”www.unicef.org/newsline/2003/03fsbirthregistration.htm.

9 A goal of 20 percent of state spending on social services was set for developing coun-tries at the Copenhagen Social Summit in 1995. See Julia Harrington, Catherine Porter,and Sanjay Reddy, “Financing Basic SocialServices,” in UNDP, Choices for the Poor,March 2001, 173-174. www.undp.org/dpa/publications/choicesforpoor/ENGLISH/CHAP07.PDF.

10 Lise Rakner and Lars Svåsand, MultipartyElections in Africa’s New Democracies,Norway: Chr. Michelsen Institute, 2002, 1.www.cmi.no/publications/2002/rep/r2002-7.pdf.

11 The African Charter on Human and Peoples’Rights has been ratified by all African Unionmember states.

12 The 1961 Convention on the Reduction ofStatelessness lays out permissible circum-stances in which a person may be deprived of anationality, even if doing so would render himstateless; see Convention of the Reduction ofStatelessness (1961), art. 8.

13 International Convention on the Eliminationof All Forms of Racial Discrimination (CERD),1965, art. I(2).

14 Johannes M. M. Chan, “The Right to aNationality as a Human Right: The CurrentTrend Towards Recognition,” 12 Human RightsLaw Journal 1991 12, 14.

15 Universal Declaration of Human Rights,1948, Article 15(1).

16 See Sengupta.

17 Human Rights Watch, “Human RightsOverview: Democratic Republic of Congo,”January 1, 2004, www.hrw.org/english/docs/2003/12/31/congo7003.htm.

18 See for example “Gambia Bars Foreignersfrom Commercial Driving,” Panafrican NewsAgency (PANA) Daily Newswire, February 10,2004.

19 See for example John K. Modise v. Botswana,AfCmHPR, no. 97/93 and AmnestyInternational v. Zambia, AfCmHPR, no. 212/98,brought on behalf of John Lyson Chinula andWilliam Steven Banda.

20 Human Rights Watch, Democratic Republic of Congo: What Kabila is Hiding, October 1997,Section III, http://www.hrw.org/reports97/congo/Congo1.htm.



21 Conversation with Ibrahima Doumbia, formerly of the Mouvement Ivoirien de droits de l’homme, January 28, 2004.

22 Conversations with staff of the ZimbabweLegal Resources Foundation, November 2003.

23 See Human Rights Watch/Africa,Mauritania’s Campaign of Terror, April 1994.

24 John K. Modise v. Botswana, AfCmHPR, no. 97/93; Amnesty International v. Zambia,AfCmHPR, no. 212/98; Malawi AfricanAssociation v. Mauritania, no. 54/91, AmnestyInternational v. Mauritania, no. 61/91, Ms. SarrDiop, Union Interafricaine des Droits de l’Hommeand RADDHO v. Mauritania, no. 98/93, Collectifdes Veuves et Ayants-droit v. Mauritania, no.164/97 à 196/97, Association Mauritanienne desDroits de l’Homme v. Mauritania, no. 210/98,AfCmHPR Judgment of May 11, 2000.

25 See Nachova and Others v. Bulgaria, ECtHRJudgment of February 26, 2004, nos. 43577/98and no. 43579/98, para. 169 (“[The Court]may… shift the burden of proof to the respon-dent Government, as it has previously done insituations involving evidential difficulties.”).

26 Malawi African Association v. Mauritania, no.54/91, Amnesty International v. Mauritania, no.61/91, Ms. Sarr Diop, Union Interafricaine desDroits de l’Homme and RADDHO v. Mauritania,no. 98/93, Collectif des Veuves et Ayants-droit v.Mauritania, no. 164/97 à 196/97, AssociationMauritanienne des Droits de l’Homme v.Mauritania, no. 210/98, AfCmHPR Judgmentof May 11, 2000.

A Precedent for DarfurIn 1989, the Mauritanian authoritiesexpelled or murdered thousands of thecountry’s black population. StephenHumphreys† visited four of the manycamps housing the refugees to this day inneighboring Senegal.

For a precursor to the ongoing exodusfrom Darfur, look west across theSahara to the Senegal River, the long border between Mauritania andSenegal. There, for the past 15 years,refugee camps dot the landscape atirregular intervals along an 800-kilo-meter stretch of desert to the south ofthe river. These displaced villages arethe result of a racial expulsion pro-gram that resonates hauntingly withevents in Darfur, Sudan, today.

In a matter of weeks in April-May 1989, Mauritania systematicallydisposed of thousands of its black pop-

ulation. In the cities, civil servants andlaborers were killed in the streets, orgathered in police stations and deport-ed by airplane. In rural areas, housingand livestock were seized or burned.Farmers and herders were packed intotrucks, driven to the river, and ferriedacross to the Senegalese side inpirogues, the picturesque fishingboats used throughout the region.Many died. Between 50-75,000 weresettled in camps, often within sight oftheir former homes across the river.Most are still there today.

Mauritania, on the far side of theSahara from Sudan, attracts littleinternational attention. The events of1989 caused ripples outside Africa atthe time, but there was neither timenor proper understanding for mean-ingful action. Yet the situation in

30 Open Society


Mauritania resembles Darfur in threerespects. First, both share a distinct if complex basis in ethnic/linguisticdiscrimination. In Mauritania, as inDarfur, the victims are all blackAfricans—yet they do not constitutethe totality of the country’s black population. Nor do they comprise ahomogenous ethnic group. In Sudan,Fur, Masalit, and Zaghawa are the victims; in Mauritania, Peul, Soninké,and Wolof persons were killed andexpelled. What these disparate groupsdo share is the trait of not being native

speakers of the state language—al-Hasaniya in Mauritania, Arabic in Sudan. Indeed, Mauritania’sHaratines—blacks who speak al-Hasaniya like the lighter-skinnedMoors—were often the attackers, notthe attacked, in 1989.

In Mauritania, ethnic and linguisticdiscrimination was formalized as anattack on “noncitizens.” The countryclaimed to be deporting “only” itsSenegalese population in response toreported attacks on Mauritanians inSenegal. To reinforce the notion thatMauritanian blacks were in fact for-eigners, their identity cards were oftenseized and destroyed. The messagewas: “You are no longer citizens. Youhave no rights.”

The second reason Sudan shouldstir memories of Mauritania is thenature of the violence. In Mauritania,expulsion methods varied between thecity and the countryside. But in theSouth, where concentrated popula-tions of black Africans lived, a pogromof torching villages, slaughtering live-stock, and relocating black Africansacross the border took place. The par-allels with Darfur are evident. In bothcountries, the policy was largely exe-cuted by proxy. In Mauritania, theHaratines, generally freed slaves whoremain close to their former Moorishmasters, attacked Peul and Soninkévillages, apparently believing theywould inherit the land. The gen-darmes generally remained in thebackground, sometimes overseeingoperations in civilian clothes, some-times intervening after the initial raidswere done to collect IDs and transportpeople. The Sudanese state originallykept greater distance from the jan-jaweed militias, Darfur’s armed perse-cutors on horseback, although theirsupport is increasingly transparent.

Third, and most chillingly, Darfurreminds us that the Mauritanian gov-ernment acted with impunity.Virtually nothing has been done torehabilitate the refugees, punish theactions of the state, or articulate andadvertise the unacceptability of theevents of 1989. A visible internationalreprimand to Mauritania did not comeuntil 2000, in the form of a ruling ofthe African Commission on Humanand Peoples’ Rights in a set of casesbrought by African and internationalNGOs. A host of human rights viola-tions were identified. Mauritania was

In Mauritania, ethnic and linguistic

discrimination was formalized as

an attack on “noncitizens”


told to “take diligent measures” torestore the refugees’ identity docu-ments and pave the way for theirreturn, including through restitutionof their belongings and payment ofreparations.1 Almost five years on,Mauritania has not acted. The com-mission’s ruling has languished with-out effective support or action by otherinternational bodies.

In effect, Mauritania perpetrated a textbook case of population cleans-ing without consequence. In the yearssince the purge, discriminatory vio-lence by states against sections of the populace demonized as “foreign”has become increasingly common inAfrica. The reconstitution and penal-ization of great swathes of the popula-tion as “noncitizens” has fuelled warsin Rwanda, the Democratic Republicof Congo, and Côte d’Ivoire. The yearssince 1989 have been catastrophic formillions of Africans from these andother countries.

Determined international condem-nation of the cleansing of the citizenryon one side of the Sahara in 1989would likely not have forestalled itsrepetition in Darfur, on the far side,

in 2004. But with the crisis in Darfurstill seething despite a year of interna-tional attention, and with hundreds ofthousands of refugees settling “tem-porarily” in Chad today as they did in Senegal 15 years ago, the paralysisof observers is dismaying. One mightjustifiably ask what the African politi-cal landscape will look like 15 yearshence if citizenship stripping andcleansing continue to gain legitimacyby precedent.

Notes

† Stephen Humphreys is senior officer, publica-tions and communications, with the OpenSociety Justice Initiative. The situation in Darfuris discussed in more detail in articles by ChidiAnselm Odinkalu and Kelly Dawn Askin onpages 65 and 67 of the present publication.

1 Malawi African Association vs. Mauritania,Communication no. 54/91, AmnestyInternational vs. Mauritania, Communicationno. 61/91, Ms. Sarr Diop, Union Interafricainedes Droits de l’Homme and RADDHO vs.Mauritania, Communication no. 98/93, Collectifdes Veuves et Ayants-droit vs. Mauritania,Communications nos. 164/97 to 196/97,Association Mauritanienne des Droits de l’Hommevs. Mauritania, Communication no. 210/98,African Commission on Human and Peoples’Rights, May 11, 2000. The judgment is availableonline: http://www1.umn.edu/humanrts/africa/comcases/54-91.html



A range of regional courts has been estab-lished in Africa in recent years. ChidiAnselm Odinkalu† examines their needsand aspirations.

The challenge of creating accessiblejustice mechanisms in Africa tran-scends national boundaries. AllAfrican countries face it; few, if any,have been able to make any progresson the road to overcoming it. Acrossthe continent, national judiciaries, like other departments and arms ofgovernment, are weak and lack credi-bility. The judiciary is under-funded,its independence is routinely under-mined by the other branches of gov-ernment, and it is called upon to applyoutdated laws and rules of evidenceand procedure that are long overduefor reform. Legal services are largelylimited to urban areas and unafford-able for a majority of the continent’spopulation. At the national level, arange of factors, including poverty, lowlegal literacy, inadequate legal servic-es, and rampant corruption sustainlegal institutions that lack public cred-ibility and are inaccessible to the vastmajority of Africa’s people. Nationalremedies for rights violations are, as a result, nonexistent or, where theynominally exist, problematic.

In the beginningIn the immediate aftermath of inde-pendence, a new generation of leadersin Africa, preoccupied with nation-

building projects, glorified sovereigntyand regime survival above that of ordinary persons, and even above theinstitutional credibility of their ownregimes. Early attempts to establish a regional court of human rights forAfrica, as suggested at a 1961 meetingof justice ministers from newly inde-pendent African states in Lagos,Nigeria, were disregarded or resistedby the continent’s rulers. Meanwhile,post-independence bills of rights weresubverted or consigned to irrelevance.In the first two decades after Africancountries acceded to independencefrom the late 1950s, a world entrancedby the Cold War looked on indifferentto both the systematic denial of basichuman rights by the continent’s rulersand the dismantling of the institutionsempowered to provide remedies forsuch wrongdoing. African rulersasserted domestic jurisdiction in orderto preclude advocacy for remedieswhere such existed.

Attitudes began to change in 1981with the adoption of the AfricanCharter on Human and Peoples’Rights. Instead of a human rightscourt, which many had advocated, the charter created an AfricanCommission on Human and Peoples’Rights to oversee the implementationof the rights recognized. The commis-sion was to be made up of 11 personselected by the college of Africa’s

INTERNATIONAL JUSTICE AND TRANSNATIONAL REMEDIES

Regional Courts in Africa: A Promise in Search of Fulfillment

International Justice and Transnational Remedies

46 Open Society

rulers—the same rulers who had committed the worst violations. Thecharter gave the commission merelyadvisory powers, which the commis-sion has subsequently sought to opti-mize in cases brought before it. But in a significant break with the thendominant tendency of simple (andnegative) assertion of sovereignty by African governments, the charterempowered the commission to receiveand issue considered advice on com-plaints of wrongdoing or violations ofhuman rights against African govern-ments from anyone with evidence ofsuch violations. In terms of Article56(5) of the charter, such complaintscould only be made after their authorshad “exhausted local remedies, if any,”a grudging admission by the rulersthat adopted the charter that all wasnot well with access to legal remediesin Africa. In the 17 years since itbecame operational in 1987, the com-mission has recognized that victimscan approach regional courts and tri-bunals directly, without exhaustinglocal remedies, if such remedies areunavailable, inaccessible or undulyprolonged.

Regional courts in AfricaThe precedent of the AfricanCommission on Human and Peoples’Rights inspired the establishment of other regional and sub-regionaljudicial mechanisms of remedy and governmental accountability. Thesecourts fall into three broad types.

First, there are the courts of justiceof the various regional economic communities in Africa. These includethe Court of Justice of the Economic

Community of West African States(ECOWAS), based in Abuja, Nigeria;the Court of Justice of the West AfricanEconomic and Monetary Union in Ouagadougou, Burkina Faso; theCourt of Justice of the CommonMarket of East and Southern Africa inLusaka, Zambia; the Court of Justiceof the East African Community inArusha, Tanzania; and the Tribunal of the Southern African DevelopmentCommunity, in Windhoek, Namibia.Although nominally created by treaty,the Courts of Justice of both the ArabMaghreb Union and the Economicand Monetary Union of Central Africado not yet exist.

These regional courts of justicehave powers to hear and give bindingdecisions on cases brought by individ-uals, including companies and NGOs,against governments in Africa on a wide variety of issues including discrimination, citizenship, regula-tion of the movement of personsacross international and regionalboundaries in Africa, regional tradeand transactions, and compliancewith national and regional rule of law.In July 2004, the 15 countries ofECOWAS brought themselves in linewith the other regions of Africa byagreeing at the ministerial level togrant individuals and companies theright to sue the governments of theregion before the ECOWAS Court ofJustice in Abuja.

Second, there is the African Courton Human and Peoples’ Rights estab-lished by a Protocol to the AfricanCharter on Human and Peoples’Rights in 1998, to overcome the limi-tations of the African Commission on



Human and Peoples’ Rights as merelyan advisory body. The protocol estab-lishing the court gives it all the powersof a court and makes its decisionsbinding on all African countries andgovernments. The court will hearcases of violations of human and peoples’ rights and issue decisions asit sees fit, which will be enforceableagainst African governments andinstitutions. The Protocol came intoforce in January 2004 and the processof constituting the judges of the courtwas proceeding as the year ended.

Another regional court emerged in July 2003, with the establishment of the Court of Justice of the AfricanUnion by the leaders of Africa, todecide on cases arising from the oper-ation of the Constitutive Act of theAfrican Union.

The existence of these regionalcourts increases avenues within thecontinent for holding African govern-ments accountable. With the vast pow-ers the new courts enjoy, it should no longer be possible for African governments to say that whatever decisions or condemnation these bod-ies may hand down was produced orprocured by non-Africans or by peoplewho do not understand Africa’s reali-ties. Nor will it be sufficient anymoreto preclude accountability by denyingnational remedies and dismantlinglegal and judicial institutions at thenational level.

Realizing the promise for ourselvesBut if these goals are to be achieved,many obstacles will have to be over-come. First, all of these regional courtsand tribunals in Africa are new and

will have to earn the trust of the peoplethrough their decisions. Created asthey are by the governments of thecontinent, they will have to overcomethe widespread public distrust of the African states that made them.Second, very little is known aboutthese courts, which indicates a needfor the courts and their personnel to develop and conduct outreach pro-grams. Third, the existence of thesecourts does not necessarily address theabsence of effective legal remedies andinstitutions at the national level. In some ways, it emphasizes the needfor effective responses to this lack.How can states that do not evenrespect their own courts credibly sus-tain regional courts?

Furthermore, the multiplicity ofregional courts raises questions of sustainability and funding. Can Africaafford so many regional courts? Inrecognition of this problem, the ThirdSummit of the African Union in AddisAbaba in July 2004 adopted a decisionrequiring the African Union to inte-grate the African Court on Humanand Peoples’ Rights and the Court ofJustice of the African Union into onecourt. Work on merging the two courtsis currently underway.

Regional and international litiga-tion is resource, time, and techniqueintensive. A pool of skilled advocatesand litigators will have to be estab-lished around the workings of thesecourts to identify the best cases, findthe resources to conduct them, ensurecompliance with the decisions, anddisseminate the outcomes of the legalwork. This will take time and invest-ment from different sources. In May


48 Open Society

Africa is host to three generations of inter-national criminal tribunals, with the ICC’sengagement with Uganda and Congo fol-lowing the Rwandan tribunal in Arusha,Tanzania, and Sierra Leone’s Special Court.Tracey Gurd† outlines the lessons learned.

Some two years after delivery of theAkayesu rape judgment, a journalistdescribed to me the fate of women sur-vivors in Rwanda, and in particular,that of witness “JJ” [who] was livingin conditions far worse than those ofthe other survivors—in a ramshacklehut on bare ground amidst sparseprovisions, rejected by and rejectingthe society of others.1

Witness testimony from “JJ” in theAkayesu case before the InternationalCriminal Tribunal for Rwanda (ICTR)was, according to former ICTRPresident Navanethem Pillay, crucialin changing “the law’s perception ofwomen’s experience of sexual violenceduring armed conflict.”2 But “JJ”’s per-sonal situation deteriorated markedly

following her engagement with theICTR. She received death threats as a result of her testimony. Originallyfrom a middle-class background, she barely subsisted from day to dayafter the war. The U.S. $1,000 thatobservers had raised for “JJ” afterhearing her heartbreaking testimonyhad long been spent, and she still hadfour young children to feed. And yetshe told one journalist that she feltsome degree of justice had beenachieved through her participation inthe Akayesu case. She found it empow-ering to testify—but she was left want-ing more.3

Her experience raises an importantquestion: how does “international justice” become, and remain, moremeaningful to the thousands of victims of international crimes?International criminal law has beeninstrumental in shifting the parame-ters of responsibility for mass atrocityto individual perpetrators in order toavoid laying collective blame on entire

Individualizing InternationalJustice in Africa: Focusing on the Victims

2003, a group of African and interna-tional NGOs formed a Coalition on theAfrican Court on Human and Peoples’Rights, to advance the creation andfunctioning of an effective Africancourt. The promise of regional courts

in Africa requires focused attention ofthis kind if it is to stand the chance of fulfillment.

Notes† Chidi Anselm Odinkalu is senior legal officer,Africa, with the Open Society Justice Initiative.


national, ethnic, racial, or religiousgroups. Yet it is still struggling to allowfor a similar sense of individualimportance for victims.

Africa provides a perfect case studyfor this discussion. Three generationsof international criminal justice mech-anisms currently operate on the conti-nent—an ad-hoc UN-supported inter-national tribunal (the ICTR), a “hybrid”tribunal (the Special Court for SierraLeone) created by an agreementbetween the UN and the governmentof Sierra Leone, and the permanentInternational Criminal Court (ICC),which began investigations in Ugandaand the Democratic Republic of Congoin 2004. Given the newness of the ICCto the continent, what can it learn fromits international justice predecessors tohelp ensure that victims, as individu-als, feel that justice has been renderedto them?

Individual concepts of justice, ofcourse, are by definition fluid andshifting, highly contextualized andpersonalized. Yet three points of con-vergence have arisen for victims in theSierra Leonean and Rwandan contextthat are worth contemplating for theICC: the need for meaningful out-reach initiatives; compensation andreparations; and adequate attention tolocal conceptions of justice.

The importance of outreachSince its inception, the ICTR hasstruggled to find ways to make itswork relevant and meaningful to theRwandan populace—particularly thevictimized. This has been made all themore difficult by location of the insti-tution in neighboring Tanzania.

Recent studies indicate that knowl-edge about the tribunal among theRwandan population is extremely low.Most Rwandans surveyed believed the court existed for two purposes: toprosecute individuals who lived out-side of Rwanda and thus were beyondthe reach of local courts, and for theinternational community to take stockof what happened in Rwanda.4 Inother words, the concept that the tri-bunal could be used as a tool for vic-timized Rwandans to come to termswith what happened during the geno-cide was practically absent from localdiscourse. These perceptions haveprompted civil society to take up the cause of informing Rwandans ofthe tribunal’s work. The media NGOInternews, for example, travels fromvillage to village to show updatednewsreels of the tribunal’s operationsin fields or town halls.

The need for this localized andintensive outreach campaign inRwanda has helped inform the devel-opment of the Special Court for SierraLeone. Not only is this institution locat-ed within the victimized country, butoutreach has been a priority for thecourt from the start. David Crane, theSpecial Court’s chief prosecutor, hastold a number of audiences that thecourt would be more successful thanits predecessors because “victims willsee justice start and finish before theireyes.”5 In 2003, local Sierra Leoneansmade up 38 percent of the court’s professional staff, including six of theprosecutor’s attorneys,6 though somenote that local hires still tend to be con-centrated in less powerful roles.7



50 Open Society

Crane has stressed the importanceof outreach. Prior to preparing indict-ments, he spent six months holdingtown hall meetings in every district ofSierra Leone. At each of these, Craneand his staff would define the purposeof the Special Court and, after askinglocals which individuals bore thegreatest responsibility for the crimescommitted, listen to the multitude ofhorrific personal stories.8 While thistype of connection to locals is to beapplauded, it has been greatly criti-cized by a number of NGOs and academic commentators. Many haveargued that such meetings actuallytaint the evidence that the prosecutorcould later collect about the atrocities.The joint sessions held in victimizedtowns meant that, in effect, both theprosecutor and the community hadalready heard testimony on crimesallegedly committed—which might, intheory at least, be viewed as prejudic-ing later proceedings. This exampleserves to highlight the difficulties in trying to mediate between localengagement in the international crim-inal justice process and concernsabout due process for defendants.

The lessons learned from the SierraLeone outreach programs will take onparticular importance for the opera-tions of the ICC in Africa. Local partic-ipation in shaping ICC engagementon the continent will be crucial to its success and its perceived utilityamong victimized communities. As Mark Drumbl has noted, “theremust be room to involve locals in theadjudication of international process-es. One way that international inter-ventions can apply is not by dictating

norms, but by opening up proceduralspace so that more members of localcommunities can come forth anddefine what they understand the cul-tural norms of that community to be.”9

The willingness of the ICC to take onboard local sensitivities will be crucialto the perceived and real success of thecourt’s operations on the continent.However, as the Sierra Leone exampledemonstrates, the ICC will need to bealert to its responsibility to ensure dueprocess when it does so.

Compensation and reparationsThe security risks for victims and wit-nesses who contemplate cooperatingwith international criminal justicemechanisms are well documented.For many, little incentive exists tocome forward to testify against theirvictimizers when promises of longterm protection are impossible tosecure. On top of security and safetyconcerns, many victims are in similarsituations to witness “JJ”—strugglingsimply to survive each day. In this con-text, the important goals of interna-tional justice may not have a great dealof practical meaning for countlessindividual victims, yet these are thecircumstances in which internationaland hybrid tribunals necessarily haveto operate.

Tim Longman, who undertook a three-year study of Rwandan atti-tudes toward the ICTR, found that survivors “feel that some form of reparation is essential for rebuildingsociety, and they believe that trialsshould play a role in arranging compensation, whether material orsymbolic.” Unfortunately, the issue of reparations falls entirely outside



the ICTR mandate.10 In Sierra Leone,financial considerations dictate somevictims’ willingness to cooperate.According to An Michels, staff coun-selor at the Special Court’s Victimsand Witnesses Unit, there are manyconflicting reasons that people chooseto cooperate with the court, rangingfrom a desire to tell their stories to thestrictly financial: “The first thing peo-ple ask is: What can we pay them? I have to tell them that it’s not reallypossible, although we can pay forthings like medical care or schoolfees.”11 According to a member of alocal women’s NGO, “most girls arehappy to testify if it will get themsomething like schooling and medicalservices. The focus for people here is:‘How am I going to eat today? How am I going to pay school charges for mychildren?’ With all that, justice seemsfarfetched.”12

The Rome Statute governing theoperation of the ICC does allow forreparations to be paid to victims, underArticle 75. While this development rep-resents an enormous leap forward forvictims’ rights, it cannot be understoodas an end in itself or as something that all victims will necessarily desire.As Martha Minow has pointed out,“although individual survivors maylack the power to design the responsethey most want, it is their prerogative,as individuals, to accept, or to reject,specific offers of reparations or apolo-gies directed to them….Restoring dig-nity to victims after atrocities should, at a minimum, involve respecting their own response.”13 Ideally, the ICCprocess would provide space for vic-tims to voice their desires and maketheir own choices as to what kinds

of compensation or reparation they will accept, as well as provide scope for them to pursue remedies in othercomplementary legal fora. In theory, at least, these options seem availableunder Article 75(3), which states thatthe ICC shall invite representationsfrom victims, among other parties,before making an order on reparations.Article 75(6) also ensures that the operation of this provision does notprejudice the rights of victims undernational or international law.

If victims do choose reparations,the money could come from the cof-fers of the indicted war criminalsthemselves. Under Article 93(1)(k) ofthe Rome Statute, state parties to theICC are obliged to comply withrequests by the ICC regarding the“identification, tracing and freezing orseizure of proceeds, property andassets and instrumentalities of crimes”of indicted war criminals “for the pur-pose of eventual forfeiture.” If success-ful, these assets can then potentially beused to fund reparation payments tovictims. This is a positive step forwardfor a victim-centered approach to inter-national justice and it is being bol-stered by efforts within civil society.The Open Society Justice Initiative andthe Coalition for International Justiceare both working to ensure that thisprovision becomes a reality for peoplewho have suffered from internationalcrimes by tracking the assets of indict-ed war criminals in Africa and tyingthese assets to the perpetration of spe-cific international crimes. The aim isto strengthen the indictments issuedby the Special Court for Sierra Leoneand the ICC, while also providing a reasonable basis for the courts to


52 Open Society


request cooperation from states infreezing such assets to make the pro-ceeds available to victims.

This does not take care of theimmediate needs of victims and wit-nesses who are currently coming for-ward to testify at the Special Court forSierra Leone, for example, and hopingfor compensation to repair their shat-tered lives and build a better future for themselves and their children.However, it does suggest that theinternational community is slowlyinching its way toward recognitionand financial compensation of the vic-tims of crimes committed duringarmed conflict.

International meets local justiceLongman’s Rwandan study also foundthat “survivors, in particular, had avision of justice that differed substan-tially from the classical retributivemodel that has shaped the ICTR.”14

According to his interdisciplinaryresearch, survivors believed punish-ing perpetrators was less importantthan encouraging those who commit-ted crimes to admit their error andseek forgiveness. This led him to con-clude that if “trials were designed withgreater sensitivity to local conceptionsof justice and with greater coordina-tion with other mechanisms for socialreconstruction, they could have amuch greater impact on societies likeRwanda that are seeking to move onfrom a violent past.”

In Sierra Leone there may be morepotential for this goal to be achieved.In addition to its physical proximityfor survivors and active outreach, the court has also operated in tandemwith another potentially complemen-

tary justice mechanism—a Truth and Reconciliation Commission.Prosecutorial choices and outcomes,however, have been somewhat contro-versial. As it happens, the first case tocome before the court—that of SamHinga Norman—concerns a manregarded as a hero by many amongthe local population for helping tostop atrocities during the war.15

Meanwhile, people still ask at localoutreach sessions why the mandate isso narrow, prosecuting only leaderswho bear the “greatest responsibility”for crimes, when, for example, theperson down the road who killed theirfamily remains free. In this sense,international tribunals may always besomewhat at odds with local concep-tions of justice, since only high levelwar criminals can be tried in hybridcourts while many “lower level” perpe-trators may remain at liberty, giventhe incapacity of local courts to dealwith their crimes.

Yet despite this and the other prob-lems the court has encountered, commentators including J. ‘KayodeFayemi have noted that “there remainsa groundswell of support for a truthtelling and reconciliation process, onethat is linked to the reform of the judi-cial system and restoration of basichuman rights in the conduct of gov-ernment and other stakeholders inSierra Leone and the region.”16 Thissuggests that many Sierra Leoneansstill have faith that the justice processis capable of helping them move onwith their lives in the wake of mass vio-lence. The challenge is how the inter-national community should respond.



The ICC is likely to have an evenmore challenging time ensuring that local conceptions of justice areincorporated and respected within itsoperations—particularly as it will be operating in different countriessimultaneously and with limitedresources, and will maintain a base inThe Hague, inevitably far from placesof conflict. For the ICC to work effec-tively in Africa and to bring meaning-ful and individualized justice to vic-tims like witness “JJ”, it needs to con-textualize itself within communitiesand think creatively of ways in whichits operations can be integrated withlocal needs, norms, and sensitivities.One way to do this would be to place a high importance on its outreachactivities and ensuring that its investi-gators find and use techniques that are sensitive to local conceptions ofjustice in each given country.

As the ICC moves forward inAfrica, it will be important for theinternational community to contem-plate how it can impact the court’soperations to ensure that internationaljustice becomes meaningful to thethousands of individuals who havesuffered during armed conflict.Innovative initiatives are already beingundertaken by civil society groups. Itis time we worked collectively toensure that victims such as witness“JJ” assume greater prominence in theprocess and are treated with theutmost dignity, respect, and care.

Notes

† Tracey Gurd is program coordinator, interna-tional justice, with the Open Society JusticeInitiative.

1 Navanethem Pillay, “Foreword” in HelenDurham and Tracey Gurd (eds), Listening to the Silences: Women and War, Leiden, KluwerAcademic Publishing (forthcoming 2005).

2 See Pillay.

3 See the discussion of “JJ”’s experiences inElizabeth Neuffer, The Key to My Neighbor’sHouse: Seeking Justice in Bosnia and Rwanda,New York, Picador, 2001.

4 Tim Longman, quoted in Steven R. Ratnerand James L. Bischoff (eds), International WarCrimes Trials: Making A Difference? Proceedings ofan International Conference Held at the Universityof Texas School of Law, November 6-7, 2003Austin, University of Texas Law School, 2004,39.

5 David Crane, Dancing with the Devil:Prosecuting West Africa’s Warlords forInternational Crimes, Address at the Yale LawSchool, April 7, 2004.

6 “This is Your Court”: Prosecutor Addresses FBCStudents, Special Court Press Release, May 5,2003, available at www.sc-sl.org.

7 See article by Zainab Bangura in this issue,page 54.

8 Crane, Dancing with the Devil.

9 Mark Drumbl, quoted in Ratner and Bischoff,45-46.

10 Longman in Ratner and Bischoff, 40.

11 Interview with An Michels, Special Court forSierra Leone Victims and Witnesses Unit staffpsychologist (March 2004) quoted in DougMerlino “Hybrid Justice: Exploring the Originsand Functions of the Special Court for SierraLeone” Berkeley, University of California mas-ters thesis, 2004 (copy on file with author).

12 Interview with Valnora Edwin, human rightsofficer, Campaign for Good Governance, March2004, cited in Merlino.

13 Martha Minow, Between Vengeance andForgiveness: Facing History After Genocide andMass Violence, Boston, Beacon Press, 1998, 135.

14 Longman in Ratner and Bischoff, 40-41.

15 Sam Hinga Norman is being tried jointly withother leaders of the government-backed CivilDefense Force (CDF), Moinina Fofana andAllieu Kondewa.

16 J.’Kayode Fayemi, “Governing Insecurity inPost-Conflict States—The Case of Sierra Leoneand Liberia,” in Alan Bryden and HeinerHänggi (eds), Reform and Reconstruction of theSecurity Sector, Münster, Lit Verlag, 2004.

54 Open Society

Sierra Leone’s judiciary was implicated inthe origins of the country’s long civil warand devastated by its consequences.Zainab Bangura† examines whether theUN-backed Special Court is helping or hin-dering Sierra Leone’s judicial system backon its feet.

The twelve year conflict in SierraLeone that ended in January 2002 wascharacterized by massive humanrights abuses unprecedented in thehistory of Sierra Leone and the ManoRiver Union subregion of West Africa.Violations and atrocities were commit-ted against all sectors of society, tran-scending gender, age, religion, andethnicity. This was a war against ordi-nary civilians, regardless of who wewere or where we came from. It was awar that broke all the rules of warfare,and ignored international conven-tions. It had no friends. Everybody was the enemy.

Atrocities were committed by allsides. They included the amputationof the body-parts of people, includingeven babies as young as three monthsold. The eyes, arms, legs and extremi-ties of men and women, children, andbabies were mutilated. The countryhas still to recover from the trauma ofthis barbaric behavior. Amputationsbecame the trademark of the rebels.Today, we are left with the legacy ofentire communities reduced to beg-ging for income for the rest of theirlives. This in a country where 70 per-cent of the people have been farmers.

Women and girls were especiallyvulnerable—thousands were abducted,

gang-raped and used sometimes as sexslaves or as the “bush wives” of rebelcommanders. Rape was institutional-ized and became an instrument of thewar. Both young girls and grandmoth-ers were selected as victims. Somerebels specialized in raping very oldwomen who had been widows foryears, as they were claimed to be“almost virgin.” This undermined themoral values in a society where old agehas not only been treated with respect,but revered, adored, and protected.

Our young children, especiallyboys, became instruments of war too.They were abducted, torn away fromtheir families and homes, drugged,trained in armed combatant, andunleashed on their communities.Children became robot killingmachines and left a trail of destroyedlives and property in their wake.

The world was slow to intervene inthe Sierra Leonean civil war and whenit did,1 in the Abidjan peace agreementof November 1996 and the Lomeaccord of July 1999—a blanketamnesty was offered to the rebels andall other actors in the conflict.However, the abduction of over 500UN peacekeepers the following year,and the shooting of 22 Sierra Leoneansin front of the house of rebel leaderFoday Sankoh, following an attack onthe house by more than 200,000Sierra Leoneans in May 2000, finallyled the government to request, in June2000, the creation of a special court totry the worst offenders.


Sierra Leone: Ordinary Courts and the Special Court



Why Sierra Leone could not host the Special Court aloneWith Resolution 1315 of August 2000,authorizing the UN Secretary Generalto establish the Special Court to trythose “who bear the greatest responsi-bility” for the atrocities in SierraLeone, the United Nations SecurityCouncil was addressing two immedi-ate problems in the country. First wasthe imperative for justice. Second,Sierra Leone’s own judicial system hadceased to function years before thewar. A decade of civil war and militarycoups had rendered this already com-promised edifice a hollow shell. TheSierra Leonean judiciary had neitherthe human capacity nor the physicalinfrastructure to host a war crimes tri-bunal, a vast, complex, and expensiveundertaking. Consider the needs.Massive amounts of evidence must becollected, analyzed, and classifiedaccording to the type of crime, thescene where it occurred, and who the alleged perpetrators were. This,together with the military backgroundof the accused (the rebels were gener-ally trained in armed combat),requires a sophisticated prosecutionstrategy. In addition, to be legitimateand credible, a war crimes trial mustmeet international human rights stan-dards. This was certainly not going tobe possible in any court established bySierra Leone at this time.

A report by the CommonwealthHuman Rights Initiative in 2002described Sierra Leone’s justice system as a “rump-judiciary,” andobserved that despite “an elaboratejudicial structure, Sierra Leone’s judi-cial system can barely function—evenin Freetown—rendering justice inac-cessible for the average citizen. Three

decades of patrimonial politics starvedthe judicial system of the resourcesnecessary for its independence and ledto the politicization of justice.”2

At the time of the 2002 report,Sierra Leone—a country of five mil-lion people—had only 15 magistratesand 18 judges. A magistrate court inFreetown, the capital city, faced 100cases a day but could only hear about20 and adjourned the rest. Thesebacklogs have caused delays for years

to come. Most of the courts are stillunderstaffed—both the Appeal andSupreme Courts lack the requirednumber of judges and are thereforeoverloaded. In addition to the problemof capacity, there were formal issuesstemming from the fact that SierraLeone’s penal code did not incorporateviolations of international humanitari-an law, such as crimes against human-ity and war crimes.

All these problems and challengesmeant that Sierra Leone’s judicial sys-tem could not take the front line rolein punishing and combating impunityfor the massive atrocities and humanrights abuses that had characterizedthe war. The end result was the cre-ation of a hybrid court under jointSierra Leonean and United Nationsjurisdiction, staffed by both local andinternational judges and prosecutors.The reason for this was not only to

Today, we are left with the legacy of

entire communities reduced to begging

for income for the rest of their lives.

56 Open Society

allow the war crimes prosecutions to go ahead, but also, according toSecurity Council Resolution 1315, to address the “negative impact of thesecurity situation on the administra-tion of justice in Sierra Leone and thepressing need for international coop-eration to assist in strengthening thejudicial system of Sierra Leone.”3

Strengthening Sierra Leone’s nation-al judiciary was, it seems, desired byeverybody everywhere.

How the court was received by Sierra LeoneansAt the start of the negotiation process,it was expected that the creation of theSpecial Court would help diffuse legalknowledge from international to localjudicial officials, and thus assist inrebuilding the judicial system. Basingthe war crimes tribunal in SierraLeone had other advantages as well,such as providing prosecutorial offi-cials with easy access to the crimescenes for the collection and collationof evidence, and locating courts withineasy reach for victims to giving testi-mony. The trials are also highly visibleto the citizenry, which is especiallyimportant in a conflict like SierraLeone’s, that touched and affectedeach Sierra Leonean individually. Andthe location allows for the familiariza-tion of the court with the cultural andhistorical milieu in which the trials aretaking place.

So despite endless debate about itscost and legitimacy, both within andoutside the country and among peopleand groups working on transitionaljustice, Sierra Leoneans welcomed thecourt. We saw it not only as a mecha-nism for transitional justice but alsoas an instrument to transform ourjudicial system. We, like the UnitedNations, saw the potential future ben-efit of the court on the judicial systemof Sierra Leone. Nobody thereforechallenged the court’s existence.

On the other hand, most SierraLeoneans have been disappointed bydevelopments since the court’s incep-tion—by the deaths of Foday Sankohand Sam Bockari, two leadingindictees, the disappearance of JohnnyPaul Koroma, a third, and the failureof Nigeria to hand over Charles Taylor,the exiled former Liberian presidentand a major backer of the SierraLeonean rebels. The failure to seethese individuals tried and made toanswer to the people of Sierra Leonehas dampened enthusiasm for thecourt.

Nevertheless, Sierra Leoneans areamazed at the revelations coming outof the court. I attended the first ses-sion, where Prosecutor David Cranegave an opening statement, and calledon victims of the war to give testimonyon specific crimes in the trials to fol-low. I left in tears after listening to thedetails of the horrors ordinary andinnocent Sierra Leoneans were subject-ed to by their own brothers and sisters.I am yet to recover from that shock. Afriend told me that she had neverbelieved in the Special Court, but nowshe is convinced it is worth every cent.


Despite an elaborate structure,

Sierra Leone’s judicial system

can barely function.


The impact of the Special Court on the domestic judicial systemAs the court sits in earnest, mostSierra Leoneons are asking what the Special Court will contribute toSierra Leone’s judicial system. While it is still too early to give a definitiveanswer, four issues must make us cau-tious about reaching a prematurelypositive assessment.

First, there has never been anydirect relationship between the SpecialCourt and the judicial system either intheory or practice. The Special Courtwas created as an entity separate fromSierra Leone’s judicial system. Thetwo were meant to be and have beendistinct and separate entities. Thetreaty between the United Nations andthe government of Sierra Leone gavethe Special Court supremacy over thenational Supreme Court.4 Whateverimpact the court may have is likely tobe indirect, even distant.

Second, there have been no activeor sitting judges from our judiciary ineither chamber of the Special Court,who might facilitate the transfer ofknowledge and skills that will beacquired over the three years of thecourt’s existence to members of thebench. In setting up the Special Court,Resolution 1315 gave the governmentthe opportunity to appoint a deputyprosecutor from Sierra Leone as wellas Sierra Leonean judges to the trialand appellate chambers. After signingthe agreement, however, the govern-ment negotiated an amendment toallow instead nationals of any com-monwealth country to be appointeddeputy prosecutor. There are of courseindividual Sierra Leoneans lawyers in

both the Prosecutor and Defenseoffices and in the Registry, but thisexperience will have more impact ontheir personal skills than on the insti-tutional experience of the bench.

Third, it is true that the judiciary inSierra Leone is to inherit the entireinfrastructure and machinery of theSpecial Court once it closes down.Naturally, the country needs a goodgenerator, for example, but resourcesare still needed to run, repair andmaintain it. It will likewise be good tohave hundreds of computers andprinters, but they too will need repairs,replacements and a servicing once in a while. The present judicial system,with its scarce resources and under-staffed structure, will have a monu-mental task before it to run and maintain these inherited structures.Physical infrastructure alone cannotbring justice to a people so desperateto see real and true justice. Buildingson their own will not transform thejudicial system in Sierra Leone.

Fourth, the impact of the court interms of substantive law has been lim-ited to date. To this day, internationalhumanitarian law is not part of ourmunicipal laws. And unless and untilwar crime legislation is domesticatedand enacted under our municipal law,it cannot be used in our court system.Nevertheless, there is no obstacle todoing so. Likewise, although the rulesof procedure created by the SpecialCourt could, in theory, be modifiedand used in our country, this has notyet been the case.

These caveats aside, every aspect of the Special Court system has the potential to benefit the country


provided there is a genuine desire toreform and transform the judicial system. In addition, the Special Courthas accumulated extensive materialsin law and has substantial human andother resources at its disposal thatcould be utilized at no cost, provided a functioning judiciary is genuinelydesired. Yet so far, the opportunity toutilize these materials to overhaul ourjudicial system and amend our lawshas not been seized.

There is still over a year before themandate of the court ends.5 We arepraying that before that date comes,Sierra Leone will take full advantage ofthe court’s presence in the country tostrengthen its laws, increase its judi-cial capacity, improve its infrastruc-ture, and learn more about modernrules of procedure for criminal law. A recent internship program estab-lished by the Special Court indicatesthat the court knows it must play a rolein revitalizing Sierra Leone’s judiciary.Yet if it is truly to contribute to judicialreform in Sierra Leone, the Special

Court must fully appreciate its dis-tance from local mechanisms and takefurther steps to bridge it.

Notes

† Zainab Hawa Bangura is executive director ofthe National Accountability Group (NAG) inSierra Leone (www.accountability-sl.org).

1 The war started in 1991. A fully operationalUN mission came into office only in 1997-8.Large scale peacekeeping only began after the1999 invasion of Freetown, when nearly 60 per-cent of the city was already destroyed.

2 Niobe Thompson, In Pursuit of Justice,Commonwealth Human Rights Initiative,2002, 10.

3 S/Res/1315 (2000) Adopted by the SecurityCouncil at its 4186th meeting, on August 14,2000.

4 The defense counsel for one of the accusedhas asked the Supreme Court for an interpreta-tion of certain sections of the Constitution witha view to declaring specific articles of the SpecialCourt agreement, especially the preamble, nulland void, and the Special Court itself unconsti-tutional as contravening the supremacy of theSupreme Court.

5 The Special Court for Sierra Leone was creat-ed in 2002, originally intended to run for a threeyear period.

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Why Congo Needs theInternational Criminal Court The ICC’s agreement to take cases from the Democratic Republic of Congo throws a spotlight on the challenges facing thejudiciary in that country, writes MarcelWetsh’okonda Koso.†

The prosecutor for the InternationalCriminal Court (ICC) is now undertak-ing investigations into war crimes and

crimes against humanity committedin the Democratic Republic of Congo(DRC), following a request from theDRC government. The time is thusright to take a closer look at theCongolese justice system to under-stand why it is not “able or willing,” in the language of the ICC Statute,



to investigate and prosecute thesecrimes. The state, after all, has theright and responsibility to pursue justice throughout its territorial juris-diction.1 Additionally, the state inwhich a crime is committed often has greater access to the perpetrators,victims, witnesses, and evidence.

States are tasked with the primaryresponsibility for ensuring that justiceis served. Yet, a whole range of factors—including armed conflict,corruption, nepotism, political calcu-lation, tribalism, or incapacity—canlead to inaction or ineffective actionon the part of a state. Conscious of the failures, gaps, or inadequacies of national justice systems, and of theneed to pursue persons responsiblefor serious violations of internationallaw wherever they are, the interna-tional community has promoted analternative approach: internationalcriminal justice.

The limits of international justiceSince its earliest incarnations in theNuremberg and Tokyo tribunals up to the recent entry into force of the ICC, as well as the ad hoc international criminal tribunals ofYugoslavia and Rwanda, internationalcriminal justice has cast itself in a sub-sidiary role. International jurisdictionis limited to crimes that are deemed athreat to international peace and secu-rity, namely genocide, crimes againsthumanity, and war crimes. Impunityis not an option for these crimes. If the state where the crimes are perpetrated does not address them, it falls to others, including the ICC, to prosecute them.

The ICC is the first permanentinternational criminal court, and its

statute is governed by the principle ofcomplementarity. In other words, thecourt defers to states to pursue andprosecute those accused of the inter-national crimes within their jurisdic-tion. It is only when states lack eitherthe will or the capacity to take on theresponsibility and obligation to prose-cute that the ICC has the possibility oftaking the case. Its function, therefore,is to fill gaps in national judicial systems. In the case of the DRC, thegaps motivating the ICC’s interven-tion are readily identifiable.

The state of the Congolese judiciaryFollowing the genocide in Rwanda,the judiciary collapsed even where the state itself did not: court infra-structure was destroyed, magistratesand other judicial personnel weremassacred, and documentation of thecrimes was nonexistent or rare. TheDRC, however, has not yet reachedthat point, at least in the areas stillunder governmental control. Here,justice faces problems of a differentorder. Where infrastructure doesexist, it is inadequate and in a state ofadvanced decay. Office furniture andequipment either do not exist or arebarely functional. Staff, who are inshort supply, live and work in miser-able conditions, with inadequatetraining to address contemporary jus-tice issues. Corruption, tribalism, andnepotism are ubiquitous.

Numerous Congolese laws inforce, inherited from colonial authori-tarian regimes, actually contradict the international instruments signedby the DRC. The 1886 criminal codewas last revised in 1940. It no longerbears any resemblance to the French

60 Open Society


criminal code on which it was mod-eled—indeed, France has since adopt-ed an entirely new code. The 1959Criminal Procedure Code was likewisepassed before the adoption of theinternational human rights instru-ments. Decrees on juvenile delinquen-cy adopted in 1950 and still in force,

fail to protect numerous rights guar-anteed in the 1989 InternationalConvention on the Rights of the Childand the African Charter on the Rightsand Welfare of the Child.

Under these conditions, the exis-tence of inequitable judicial processesis less astonishing than would be their absence. A number of differentforums and studies spotlight the mul-tiple failings of Congolese justice.2

Concrete proposals for improvingCongo’s judiciary, despite numerouspromises, have yet to be taken up by the government.

On the other hand, a number of international interventions areunderway. A European Union initia-tive to rebuild Congo’s judicial infra-structure gradually, and improve the quality of the official journal, is to be welcomed, as is the Belgian gov-ernment’s distribution of the respect-ed Belgian Larcier codes to magis-trates.3 The UN has employed—and is thereby providing experience to—

Congolese judicial personnel. TheOHCHR has supported Congo’sMinistry of Human Rights in organiz-ing seminars for military judges. The United Nations Mission in Congo(MONUC) has organized humanrights training sessions for police andjudicial officers; helped create a tribu-nal for trying serious crimes in Ituri,which is already in operation; andoffers logistical assistance and train-ing for a military court in Katanga.

But these efforts will come to noth-ing unless they are followed through.Already Congolese magistrates andother judicial personnel are dissatis-fied that so much is spent on build-ings, documentation, and trainingwhile little or nothing has gone towardimproving their salaries. It is difficultto assess what impact these variousinitiatives can have without the morecomprehensive reform of the judiciaryannounced long ago.

Complementarity in practiceThe need for greater judicial capacityacross the board is vital if theCongolese judiciary is to take anyresponsibility for addressing warcrimes and crimes against humanitycommitted in the country, which itmust do sooner or later, because the ICC cannot possibly cover themall. Additionally, the DRC will need totake steps to institute the followingreforms.

First, define international crimesuniformly in national law. Wheregenocide, crimes against humanity,and war crimes are included indomestic law, their definitions divergefrom those in international treaties.For example, the crimes referred to in

The existence of inequitable judicial

processes is less astonishing than

would be their absence.

article 166 of the 2002 military crimi-nal code as crimes against humanityconfusingly reflect those laid down in the Rome Statute (article 6) as warcrimes. There is likewise no recogni-tion in the Congolese code of the specificity of crimes committedduring a widespread or systematicattack upon a civilian population. TheRome Statute can serve as a sourcetext to dispel possible confusionbetween national law and internation-al obligations.

Second, resolve the question of competent jurisdiction. UnitedNations and international or regionalhuman rights instruments—includ-ing those of the African Union—gen-erally require civil, rather than mili-tary, jurisdiction over internationalcrimes. However, in Congo, both the2002 military criminal code and themilitary judicial code of 1972 optinstead for military jurisdiction overthese crimes. Clearly this differencemust first be addressed, which willopen the way for tackling the largerissue of whether the appropriatecourts are able and willing genuinelyto prosecute international crimes.

Third, institute credible protectionsfor the rights of defendants. Apartfrom exposure to the generally inade-quate judicial processes, the rights of the accused are further underminedby the overarching jurisdiction of military tribunals. One improvementwould be to establish the control of the ordinary courts over pretrial deten-tion. While judicial review of pretrialdetention is recognized by interna-tional human rights instruments, it is unknown in the DRC’s military

judicial code. A second reform wouldbe to secure the right to be represent-ed by counsel of one’s choice. The mil-itary judicial code expressly prohibitsdetainees from being represented byforeign lawyers—a clear violation oftheir rights. And, third, the rights of defendants in death penalty casesrequire greater protection. Followingthe example of international humanrights standards, the ICC does notallow the death penalty to be imposed.If not actually required to abolish it,states are nevertheless encouraged toapply the death penalty only underconditions of strict protection of therights of the accused. However, theprotections available to defendants inthe DRC are inadequate.

It is in view of these and otherproblems, such as the ongoing debatesurrounding judicial independence,4

that the president decided that theDRC is not in a position to carry out itsinternational obligation to punishinternational crimes committed with-in its borders, and referred the situa-tion to the ICC. Nevertheless, thecourt must be regarded as a provision-al solution until the day when theCongolese judiciary can securely takeon the role of prosecuting internation-al crimes that take place within its ownjurisdiction.

Notes

† Marcel Wetsh’okonda Koso is executive direc-tor of Campagne pour les droits de l’homme auCongo (CDHC–ASBL).

1 See Gerard de Pradelle, “La compétence uni-verselle,” in Hervé Ascensio, Emmanuel Decauxand Alain Pellet, Droit international pénal,Pedone, 2000, 913; Angelos Yokaris, “Lescritères de compétence des juridictionsnationales,” ibid, 899.



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2 For example: a seminar on the administrationof justice and human rights was held in 1999, anational conference on human rights in 2001,and workshops in 2003 on the theme “WhatJustice for the Democratic Republic of Congo,”and on torture and cruel, inhuman and degrad-ing treatment.

3 Larcier, a respected publisher of the Belgiancode, has recently undertaken to publish a com-pilation of Congolese codes.

4 In October 2003, the country’s judges went onstrike to demand greater independence, claim-ing in particular that low salaries weaken theirinstitutional independence, allowing for manip-ulation both by government and nongovern-mental actors. Almost three months later, theyreturned to work with no concessions made bythe government.


Challenging Charles Taylor’sPolitical Asylum in NigeriaBabatunde Fagbohunlu,† one of a team oflawyers representing the plaintiffs in thecase of David Anyaele and EmmanuelEgbuna v. Charles Taylor, the President of theFederal Republic of Nigeria and Three Others,describes progress to date.

Whatever moral or political justifica-tion the Nigerian government maybelieve exists for its decision to grantpolitical asylum to former President ofLiberia Charles Taylor, the action ishighly questionable from a legal per-spective. The decision is also nowbeing challenged in court by Nigerianvictims of the atrocities committedagainst civilian populations during thecivil war in Sierra Leone. The warcrime victims want Taylor to face trialon an indictment issued by the prose-cutor of the UN-backed Special Courtfor Sierra Leone, which accuses him ofbearing the “greatest responsibility”for atrocities committed by theRevolutionary United Front (RUF) ofSierra Leone, a rebel movement thatTaylor is believed to have sponsoredand encouraged.

The case against TaylorThe charges against Charles Taylor areextremely grave: war crimes, crimesagainst humanity, and serious viola-tions of international humanitarianlaw. Nigeria’s grant of refugee statusin August 2003, which has preventedenforcement of the warrant to compelhis attendance at the proceedings inFreetown, Sierra Leone, has becomeincreasingly controversial. Humanrights groups and international organ-izations have flooded NigerianPresident Olusegun Obasanjo withpetitions to have the former Liberianleader arrested and his asylum statusreviewed or rescinded. In this context,the initiation of legal proceedings to nullify the asylum grant, brought by two surviving Nigerian victims ofRUF atrocities, is timely.

David Anyaele and EmmanuelEgbuna were tortured and mutilated in1999 by rebel groups in Freetown.Both were subjected to amputations,which led, in Anyaele’s case, to the per-manent loss of both hands. Their questfor legal redress is at the heart of the litigation commenced in Nigeria’s

Federal High Court in Abuja. The liti-gation challenges not only CharlesTaylor, but also the Government of theFederal Republic of Nigeria and theNational Commission for Refugees.1

Anyaele and Egbuna are representedon a pro bono basis by the Nigerian law firm, Aluko & Oyebode. I am lead-ing the team of lawyers representingthe victims.

Our objective is to establish that thegrant of political asylum to CharlesTaylor contravenes both domesticstatutory provisions and Nigeria’sinternational legal obligations, notablyunder the United Nations Conventionon the Status of Refugees.2 The chal-lenge takes the form of a judicialreview application, a procedure thatenables the court to strike down actsor decisions of the government whichare found to have been made illegally,or exercised for an extraneous pur-pose. The review procedure alsoallows the court to act against deci-sions taken or made on inappropriategrounds without regard to relevantconsiderations and in violation of thefundamental rights of the citizenry as protected by Nigeria’s 1999Constitution and the African Charteron Human and Peoples’ Rights.3

Should Taylor’s asylum be struckdown in Nigeria’s courts, the decisionwould open the way for him to facewar crimes charges in the SpecialCourt for Sierra Leone, whereAnayaele’s and Egbuna’s grievancescan be addressed directly.

Small steps forwardOn May 31, 2004, the Federal HighCourt of Nigeria, presided over by

Justice Steven Adah, ruled that thecourt must accept the applications—thereby effectively granting leave toeach applicant to pursue judicialreview. This was the first importanthurdle the applicants had to clear inthe pursuit of their claims.

The second obstacle was establish-ing an effective and inexpensive procedure for serving the courtprocesses on Charles Taylor—that is,for informing him that proceedingsare underway against him. Ordinarily,defendants should be informed in person, but it was apparent from

the start that this would be impossiblein Taylor’s case because of the heavy retinue of Nigerian security personnelprotecting him. Therefore, the courtdirected that the processes be deliv-ered to the office of the Governor of Cross Rivers State in Calabar, where Taylor is said to be takingrefuge. However, the Governor,Donald Duke, declined to cooperate,citing immunity provisions in theNigerian Constitution. The court considered the arguments ill-founded,but granted the victims’ request tosimplify the procedure. On June 13,2004, the court allowed that Taylorcould be served by advertisements in two daily newspapers, together with notices put up in the premises


The case invokes the duty of

states to refuse indicted war

criminals refugee status.


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of the Abuja and Calabar JudicialDivisions of the Federal High Court.

Another remarkable milestone wasachieved in the proceedings when the Federal High Court granted thevictims’ request to issue a subpoenacommanding the Nigerian RefugeeCommission to attend the proceed-ings and to produce all documentsrelating to the grant of Taylor’s politi-cal asylum.4 Willful disobedience orneglect to comply with an order of thisnature is deemed to be contempt ofcourt. As of the end of 2004, there hadbeen no compliance with the court’sorder and the victims’ lawyers werecontemplating contempt proceedingsagainst the Refugee Commissioner inorder to enforce the court’s subpoena.

The defenseAll the respondents in the suit exceptCharles Taylor are represented by theoffice of the Federal Attorney General.A preliminary objection to the suit hasbeen raised by the Attorney General’slawyer, challenging the jurisdiction ofthe court to entertain the victims’claims on three grounds: that (1) thevictims lack standing before the court;(2) they have “disclosed no cause ofaction known to law” to entitle them tothe relief sought; and (3) any challengeshould have been made within threemonths of the grant of asylum to com-ply with the statute of limitations, a time limit long since passed.5

In response to these objections, thevictims’ lawyers shall contend that theacts challenged constitute a “grossabuse of office” and were done malafide and therefore not susceptible tothe kind of objections raised by thegovernment. The reply shall be on

points of law and where necessary, will be supported by the avermentscontained in the processes alreadyfiled in this suit on behalf of the victims. So far, Charles Taylor hasignored the court proceedings.

Ultimately, if the court is persuad-ed that the grant of political asylum toTaylor by the Nigerian governmentwas an “abuse of office” or was madeillegally, exercised for an extraneouspurpose and/or taken or made onirrelevant grounds without regard torelevant considerations and in viola-tion of the fundamental rights of thecitizenry, there is a likelihood that thecourt will declare Taylor’s asylum ille-gal. The court may also make aninjunctive order against the Nigeriangovernment to preclude it from main-taining the asylum, thus removing anylegal justification that the Nigeriangovernment may have for refusing todeliver Taylor for trial at the SpecialCourt for Sierra Leone.

The case is of wider significance tointernational law, as it invokes theduty of states to refuse refugee statusto indicted war criminals and makeevery effort to facilitate their prosecu-tion, both arguments put forward in a recent amicus curiae brief submittedby the Justice Initiative to the Abujacourt in November 2004.6 If success-ful, the case will mark a significant victory in the struggle to end impunityfor war criminals.

Notes

† Babatunde Fagbohunlu is a partner at the lawfirm of Aluko & Oyebode.

1 Suit No FHC/ABJ/M/216/04 and Suit NoFHC/ABJ/M/217/04 commenced by way of Originating Summons, were filed by



Sudan’s Government Does Not Hide its AtrocitiesKelly Dawn Askin† visited refugees fromDarfur, Sudan, camped across the borderin Chad.

As Bill Frist, the majority leader of the U.S. Senate, was interviewingrefugees from Darfur in Chad earlierthis month, the Sudanese governmentand Arab janjaweed forces attacked a number of black Darfurian villagesjust a few miles away, over theSudanese border. Frist was in Chadbecause Sudan had refused to granthim a visa, even though Khartoumhad done so on earlier occasions. The timing and location of the attacksdemonstrated the Sudanese govern-ment’s confidence that it could actwith impunity.

I was in Chad at the same time to provide parallel assistance to a U.S.government-funded mission led bythe Coalition for International Justice,to interview refugees about why they

fled Darfur, and to participate in docu-menting and assessing the crimesthey endured or witnessed before leav-ing. According to witnesses I inter-viewed, since its independence fromBritain and Egypt in 1956, Sudan hassystematically discriminated againstits black citizens, amounting to crimesagainst humanity of persecution andapartheid. It has now reached the scaleof genocide—executed through vio-lence, starvation, and other means of destroying the black Africans inthe Darfur region.

After interviewing five boys aged10 to 18 who had escaped from jan-jaweed or Sudanese governmentforces that had captured and torturedthem, I then spoke with a Sudaneserefugee-camp leader who had justreceived information that severalDarfurian villages were being attackedby government and janjaweed troops.

David Anyaele and Emmanuel Egbuna againstCharles Taylor, the Federal Commissioner for Refugees, the Eligibility Committee for Refugees, the National Commission forRefugees, the President of the Federal Republicof Nigeria, and the Attorney-General of theFederal Republic of Nigeria, all sued as the 1st tothe 6th Respondents in the action.

2 National Commission for Refugees, etc. Act,cap 244 Laws of the Federation of Nigeria 1990,1951 United Nations Refugee Convention,African Charter on Human and Peoples’ Rights(Ratification & Enforcement) cap 10 Laws of theFederation of Nigeria 1990.

3 Enacted in the Federal Republic of Nigeria bythe African Charter on Human and Peoples’

Rights (Ratification and Enforcement) Act, Cap. 10, LFN 1990. See also Chapter IV of theConstitution of the Federal Republic of Nigeriaand the Articles of the ACHPR.

4 The Subpoena Duces Tecum was signed onJune 28, 2004.

5 The Public Officers Protection Act Cap. 379,LFN 1990 requires that any action or proceed-ings commenced against any person for any actdone in pursuance or execution of any law or actor of any public duty or authority shall be insti-tuted within three months of the act.

6 The amicus curiae brief and other materialsrelating to the Taylor case are available online atwww.justiceinitiative.org.

66 Open Society


Traveling to the border the next morn-ing, I met dozens of men, women, andchildren who had managed to escapethe ambush and were now tricklinginto Chad.

I met with survivors from nine dif-ferent villages that had been attacked,although exactly how many villageswere involved is unclear. I spoke withone survivor after another who told a strikingly similar story of the mostrecent attacks: government planesflew overhead to view the villages, andthen government vehicles attackedfrom the hillsides while thousands ofjanjaweed simultaneously set in onhorseback. Most of the villages hadbeen attacked before, and survivorshad sought safety in the nearby moun-tains. But Sudanese policemen hadgone to the mountains and usedmegaphones to lure the civilians backto the villages, saying it was safe andoffering protection.

While on the border, we could hearplanes and bombing to the north.Survivors told us that a UN camp forinternally displaced persons had alsobeen attacked that Saturday and, omi-nously, that UN staff members hadbeen evacuated from the camp on July29, a week and a half before the attack.There were also reports that some20,000 men, women, and childrenwere trapped in the Jabal MoonMountains near Chad. Soldiers hadsealed off the area to prevent theirescape and to stop aid from gettingthrough in what was apparently anattempt to starve them to death.

The type of violence I observed andheard described indicate that genocideis occurring in Darfur. The definition

of genocide is not limited to masskilling, although that is the means thatgenerates the most attention and outrage. In addition, the GenocideConvention of the United Nations alsorequires states to prevent and punishother acts committed with an intent todestroy, even partially, a racial, ethnic,national or religious group. The mostcommon form of genocide committedin Darfur is the infliction of “slowdeath” through starvation and dis-ease—an act covered under subarticleC of the Genocide Convention, whichprohibits inflicting on a group “condi-tions of life” calculated to result in thatgroup’s demise.

The government of Sudan, farfrom being a helpless bystander, is aleading participant in these crimes,and its soldiers and its air force areopenly working hand in hand withthe janjaweed. The slaughter, rape,and massive destruction over the past several months were preceded by decades of systematic discrimina-tion by Khartoum in all areas of lifeagainst black Darfurians. The govern-ment cannot be trusted to protectcivilians, much less assist them. The African Union, with the logisticaland, if necessary, military support ofWestern democracies, must act beforetens of thousands more innocent livesare lost. And justice must be pursuedin order for Sudan to have any chancefor a real and lasting peace.

Notes

† Kelly Dawn Askin is senior legal officer, inter-national justice, at the Open Society JusticeInitiative. This article was first published in theInternational Herald Tribune on September 7,2004.



Chidi Anselm Odinkalu† describes regionalinstitutional inactivity in the face of contin-uing slaughter.

They came on their horses and killedthe people of our village who started to resist them. When I heard themachine guns, I started to collect mykids, trying to escape from the agony.But they captured me, killed my threekids, and six of them raped me. Thenthey went away. The rest of the vil-lagers collected together and fled thearea, and now I am staying at arefugee camp looking for somethingsecure. I do not know how to say it, I am really afraid of even being killedby my relatives because of the jan-jaweed baby that I am bearing.

This is the testimony of a female sur-vivor of the ongoing genocide inDarfur, Western Sudan. In 1944,Polish Philosopher, Ralph Lemkin,coined the word “genocide” to describecrimes such as the Nazi-led attempt to eliminate a specific race of people,in this case, the Jewish race. During the First World War, the Armenianssuffered a similar fate. By 1949, a world appalled by the crimes of the Nazis adopted the Convention on the Prevention and Punishment of the Crime of Genocide, otherwiseknown as the Genocide Convention.

The Genocide Convention enteredinto force on January 12, 1951. Article IIof the convention defines genocide as:

any of the following acts committed withintent to destroy, in whole or in part, anational, ethnical, racial or religiousgroup, as such:

Killing members of the group;

Causing serious bodily or mental harm tomembers of the group;

Deliberately inflicting on the group con-ditions of life calculated to bring about itsphysical destruction in whole or in part;

Imposing measures intended to preventbirths within the group;

Forcibly transferring children of thegroup to another group.

This definition makes genocide acrime of very specific intent. It isadopted completely by Article VI of theRome Statute of the InternationalCriminal Court. One or a mixture ofthese elements can constitute thecrime of genocide. Article VIII of theGenocide Convention establishes per-haps the most important obligationcontained in that treaty. It obliges all contracting parties to “call upon thecompetent organs of the UnitedNations to take such action under theCharter of the United Nations as theyconsider appropriate for the preven-tion and suppression of acts of geno-cide or any other acts enumerated in Article III of the Convention.”These enumerated acts are genocide,conspiracy to commit genocide, incite-ment to genocide, attempt to commitgenocide, and complicity in genocide.

The obligations to prevent, sup-press, and punish the crime of geno-cide are both customary and peremp-tory norms of international law. Thus,the notable failure of Sudan to ratifythe Genocide Convention does notshield it from the obligations of other

Darfur: the New Name of Genocide

68 Open Society


states/actors to prevent, suppress, and punish the crime of genocide.Moreover, as the United NationsSecurity Council noted in Resolution1556 of July 30, 2004, “the Governmentof Sudan bears the primary responsi-bility to respect human rights whilemaintaining law and order and protect-ing its population within its territory.”The government has not just manifest-ly failed to do this; it is actively involvedin the most brutal violations of theseobligations.

The survivor testimony that openedthis article is not isolated. The num-bers available indicate a harrowingand widespread level of violence inDarfur. International agencies esti-mate that over 50,000 have beenkilled in the region since the begin-ning of February 2003; over 200,000have been forcibly displaced intorefugee camps in neighboring Chad;over 1.7 million people are internallydisplaced and mostly encamped with-in Sudan itself: 600 are estimated to have died in these camps, which,until recently, were denied access to humanitarian assistance by theSudanese government. This adds upto a genocidal campaign that is pro-ducing a monthly average of about18,000 deaths. Sexual violence andrape of women and young girls,including victims eight years old and

younger, is employed as an instru-ment of war and ethnic cleansing.

In a recent survey of the Darfurianrefugee population conducted by theCoalition for International Justice forthe U.S. State Department, 67 percentof the refugees had witnessed thekilling of a nonfamily member; 61 per-cent had seen their own family mem-bers killed; 44 percent had survivedbeing shot at; 28 percent had sufferedforced displacement; 25 percent hadbeen abducted; and 16 percent of thepopulation had been raped.

To put these numbers in perspec-tive, Darfur, comprises three states ofthe Republic of Sudan that when com-bined are geographically bigger thanFrance and host about 7 million peo-ple. Nearly one-third of this popula-tion has either been killed, displaced,abducted, raped, or is gradually beingstarved to death. On any reading, vio-lations on this scale must qualify, in the language of Article II(c) of theGenocide Convention, as “deliberatelyinflicting on the group conditions oflife calculated to bring about its physi-cal destruction in whole or in part.”Faced with this evidence, both theEuropean Union and the UnitedStates have determined that the situa-tion in Darfur amounts to genocide.

The African Union (AU), however,acknowledged only that the situationin Darfur presents a “grave humani-tarian crisis,” during the 5th Sessionof its Peace and Security Council inApril 2004. The AU requested aninvestigation of the situation in Darfurby the continental human rights body,the African Commission on Human

While bureaucratic rigmarole goes on,

the people of Darfur are being savaged.



and Peoples’ Rights. But just as thecommission’s five-person team wasdeployed on its mission in Darfur in July, the summit meeting of the 3rd Ordinary Session of the Assemblyof Heads of State and Government of the African Union, presided over by Nigeria’s President OlusegunObasanjo, prejudged the outcome ofthe investigation by deciding on July 8that “even though the humanitariansituation in Darfur is serious, it cannotbe defined as a genocide.”

Article IV of the Constitutive Act of the African Union requires AfricanStates to actively intervene in theaffairs of other member states whenthose other states are involved in committing war crimes, crimes againsthumanity or genocide.

Africa’s leaders persist in minimiz-ing the international crimes beingcommitted in Darfur as “a humanitar-ian crisis,” as if it were similar to actsof nature like a flood, earthquake orhurricane. But Darfur is not an act ofnature. It is caused by human actors,exercising political authority. Theymust be halted and brought toaccount. One point of view within theleadership of the African Union is thatunlike the case of Rwanda, a genocidein terms of both the quantity (nearly 1million killed) and quality (mass mur-der) of the acts perpetrated, “a mere”50,000 have been killed in Darfur.

Apparently, in the arithmetic of theAfrican Union, genocide will haveoccurred in Darfur only after the jan-jaweed militias kill, rape, and abusethe 2 million forcibly displaced peopleliving in deadly conditions in refugeecamps.

The African Commission onHuman and Peoples’ Rights met on September 19, 2004, in Pretoria,South Africa, to adopt the report of its investigation mission to Darfur.The commission’s report is yet to bepublished, but authoritative sourcesclose to the commission indicate thatit determined that in Darfur, the gov-ernment of Sudan had been involvedin “war crimes and crimes againsthumanity, and massive human rightsviolations by members of the securityforces.” The African Commission onHuman and Peoples’ Rights endorsedthe establishment of an independentinternational commission to investi-gate the international crimes inDarfur. While this bureaucratic rigma-role goes on, the people of Darfur are being savaged and the continent’srulers shrink from their moral andlegal duty to call the crime by its proper name: genocide.

Notes

† Chidi Anselm Odinkalu is senior legal officer,Africa, with the Open Society Justice Initiative.This article first appeared in the Nigerian paperVanguard on September 24, 2004.

70 Open Society


Shortly after a failed government attempt to impose a state watchdog on the media,Gambia’s press are under greater pressurethan ever to toe the line, writes DembaJawo.†

Recent attempts to establish a “nation-al media commission” in Gambiamust be seen against a backdrop of steadily growing intimidation of the press since 1994, when the military took power. At first, the mili-tary rulers cultivated a relationshipwith the media, frequently callingpress conferences to “expose” one bad deed or another committed by theformer regime—apparently to con-vince the world that their predecessorswere corrupt and deserved to beremoved in a coup. The honeymoon,however, did not last. The militarysoon banned political parties and theirnewspapers, and barely two monthsafter the coup, the editors of Foroyaa,the political organ of the oppositionPeople’s Democratic Organization for Independence and Socialism, werearrested. The two editors, HalifaSallah and Sidia Jatta, were tried incourt, cautioned, and let go.

Shortly afterward, Kenneth Best, aLiberian refugee and editor and pro-prietor of the Daily Observer—the onlynational daily paper in the country—was arrested and deported back to war-torn Liberia, supposedly for violatingimmigration laws. Although the paperendured, it and other private media

houses were subjected to frequent visits by tax inspectors, customs andimmigration officials and the NationalImmigration Authority (NIA), lookingfor “illegal” immigrants. At one time,immigration personnel were regularlystationed at the gate of the DailyObserver, checking the credentials ofanyone entering or leaving. As a result,many non-Gambian journalists weredeported or simply left the country.

Despite a return to nominal civiliandemocratic rule in 1997, the intimida-tion and harassment of journalists con-tinued unabated. In February 1998, forinstance, the NIA forcibly closed downCitizen FM, a private radio station, anddetained its proprietor Baboucarr Gayefor several days for operating without a license. He was convicted and finedand the radio station’s equipment wasconfiscated. That judgment was subse-quently overturned, but in October2001 the station was finally closeddown following charges of tax evasion.Citizen FM’s problems started whenthe station began broadcasting its ownnews bulletins and giving airtime tothe public, including members of theopposition. The program that seems tohave particularly angered the authori-ties was the station’s daily review ofEnglish-language newspapers in Wolofand Mandinka, the two most widelyspoken languages in the country.

FREEDOM OF EXPRESSION AND INFORMATION

Attacks on Media Freedom in Gambia



After 2000, fire became theweapon of choice against the media.In August 2001, arsonists attacked the premises of Radio One FM, andthe proprietor, George Christensen,was hospitalized with serious burns.In September 2003, and more seri-ously in April 2004, the printingpremises of the bi-weekly Independentwere torched by gunmen whose iden-tities remain unknown. On August 15,2004, the house of the Banjul BBCcorrespondent, Ebrima Sillah, was set alight while he slept inside. Heescaped but lost his house and posses-sions. None of these incidents hasbeen investigated.

The National Media Commission In 2002, the National MediaCommission Act was passed, asrequired by Section 210 of the 1997Constitution, to “establish a code of conduct for the media of mass communication and information andto ensure the impartiality, independ-ence and professionalism of themedia, which is necessary in a demo-cratic society.” Although Gambia’sjournalists declared, through theGambia Press Union (GPU), that self-regulation was the most desirableform of governance, particularly for the print media, they were never-theless ready to cooperate with theauthorities in the formation of thecommission.

The Ministry of Informationincluded the GPU in a task force toprepare a draft bill for enactment by parliament. However, practically allthe task force’s recommendationswere rejected. The ministry insteaddrafted its own bill, turning the com-

mission into a virtual tribunal, withpowers to impose heavy fines andeven imprisonment for journalistswho violated the act’s provisions, aswell as compel them to reveal theirsources. In their analysis of the bill,the Accra-based Media Foundation for West Africa said that “the thrust of the bill is to control, sanction, penal-ize, fine, even suspend and close downmedia houses and organizations, and

in some cases sentence journalists to terms of imprisonment, and not to protect, support, and promote thepluralistic and vibrant media, as oughtto have been the case.”

Although the GPU and othermedia and human rights organiza-tions urged the government to dropthe bill, the National Assembly never-theless passed it and PresidentJammeh signed it into law in August2002. The GPU, with assistance andsupport from the Open Society JusticeInitiative and other media rightsorganizations, decided to challengethe constitutionality of the MediaCommission Act in the SupremeCourt. In October 2003, the chief justice dismissed an application for an interim injunction against the bill’senforcement without giving a reason.

Fighting the media commissionAdjudication of the challenge to theact’s constitutionality was delayed

After 2000, fire became the weapon

of choice against the media.

72 Open Society


because Gambia’s Supreme Courtlacked its full complement of judges,itself largely an outcome of govern-ment-forced resignations and a failureto appoint replacements. The Courtfinally sat in February 2004 to hearthe case and review the chief justice’sdecision on the injunction. The lawyerfor the Gambia Press Union, HawaSisay-Sabally, argued that in its pres-ent form the act breaches internation-al freedom of expression guarantees.She said it fails to promote the inde-

pendence, impartiality, and profes-sionalism of the media. Instead, sheargued, it gives too much power to acommission subject only to govern-ment control.

The commission was to registerand license journalists and mediahouses, with the power to place sub-stantive restrictions on entry to thejournalistic profession and on theestablishment of media outlets. Theact also provided for harsh sanctions,including banning journalists frompracticing for 12 months, and banningmedia houses from operating for 18months, for breaches of a code of con-duct to be set by the commission.Sisay-Sabally argued in court that thewhole regulatory system envisioned bythe act is unconstitutional and con-trary to international law.

The state’s attorney requested moretime to reply to the GPU submission,and so the case was adjourned untilthe next sitting of the Supreme Court.The court dismissed the applicationfor an injunction on the commission’sestablishment, stating that there wasno need to disturb the status quo. Thisambiguous decision was interpretedby the government to mean the com-mission should have power to operatewhile the case is still pending. TheGPU interpreted the ruling to meanthe reverse—that no steps to establishthe commission should be takenpending a full decision—and so theywrote to the court for clarification. The next hearing was scheduled forNovember 2004.

In April 2004, a newly constitutedcommission wrote to all independentmedia houses asking them to registerby mid-May, or risk being closeddown. Rather than comply, most independent media houses protestedthe ultimatum by voluntarily suspend-ing operations for one week. With the judicial vacuum continuing, repre-sentatives of the government and the media reached an agreement toobserve a three-month moratoriumduring which time the various stake-holders would discuss possible ways to amend the act. That moratoriumexpired on August 14 and was extend-ed another three months.

On October 20, the governmentsuccumbed to the pressure of nation-al and international civil society and moved to abolish the commis-sion in its current form. However, victory celebrations were short-lived.On November 19, the government

The ministry drafted its own bill, turning the commission

into a virtual tribunal, with powersto impose heavy fines and even

imprisonment on journalists.



proposed two new laws aimed atrestricting and intimidating journal-ists—the Criminal Code (Amendment)Bill, 2004 in addition to a Newspaper(Amendment) Bill, 2004. The firstmakes defamation a criminal offense,carrying a minimum sentence of sixmonths. The bill specifies that igno-rance of the falsehood of allegations isno defense. The second increases thecost of registering a newspaper or abroadcasting station from 100,000dalasis to 500,000 dalasis (approx.U.S.$ 20,000). The bills were passedby Gambia’s National Assembly onDecember 13 and 14, 2004, respective-ly, and will enter into force once theyreceive presidential assent. In thewords of Madi Ceesay of the Gambia

Press Union, the amendments effec-tively put Gambian journalists in“deeper trouble than they would havebeen under the national media com-mission.” The current Banjul govern-ment, still unwilling to shed its author-itarian habits, has again demonstratedit is no friend of media freedom.Strong and sustained domestic andinternational pressure might helpforce them to allow the media to oper-ate freely.

Notes

† Demba Jawo is president of the Gambia PressUnion. The author would like to dedicate thisarticle to the late Deyda Hydara, a Gambianindependent journalist and uncompromisingdefender of press freedom, who was murderedon December 16, 2004.

More than five years after its first submis-sion to the parliament, Nigeria’s access toinformation bill has finally reached the par-liament’s upper chamber and appearsclose to adoption. Maxwell Kadiri† writesabout its progress.

Sustained legislative momentum fol-lowing the election of a new nationalassembly in 2003, the second underPresident Olusegun Obasanjo, looksset to increase freedom of information(FOI) in Nigeria. The Freedom ofAccess to Information Bill, which has been before the parliament sinceJuly 1999, has already undergonethree required readings (debates) inthe lower chamber (the House of

Representatives), and the first of threein the Senate of Nigeria’s bicameralNational Assembly. Presidential objec-tions have been addressed, and, at thiswriting, most observers see no furtherobstacles to passage.

It has been a long journey. The FOIBill was originally put forward by theFreedom of Information Coalition, an umbrella group of civil societyorganizations including the CivilLiberties Organisation and NigerianUnion of Journalists and led by the Media Rights Agenda. The timeseemed auspicious, with a new presi-dent publicly committed to fightingcorruption, and a fresh set of faces in

Freedom of InformationProgresses in Nigeria

74 Open Society


parliament. However, after two read-ings in the House of Representativesin 2000, an ongoing dispute betweenthe president and parliament about the leadership of the House delayedthe next reading for over a year. Despitewidespread cross-party support, a fur-ther obstacle arose when PresidentObasanjo objected to some of the draftbill’s content, particularly its inclusionof access to information for nonciti-zens. Legislative work on the bill effec-tively ground to a halt through theremainder of the parliamentary term,which ended in May 2003.

Then, following the June 2003 parliamentary elections, the FOI Billagain reached the top of the legislativeagenda. Sponsored by Jerry SunnyUgokwe, the only one of its three original supporters to continue intothe new assembly, the bill sailed successfully through its first and second readings in the House ofRepresentatives in quick succession.On July 30, 2003, members of theHouse of Representatives referred itto a tripartite parliamentary commit-tee, made up of the information, jus-tice, and human rights committees,for their opinion. The InformationCommittee took the lead, reading thebill and referring it to a subcommitteeof nine members, three from eachcommittee.1

This subcommittee analyzed the bill in detail and wrote a freshreview for the tripartite committee.Throughout this process, members of the subcommittee worked closelywith civil society groups, notably theFreedom of Information Coalition and the Open Society Justice Initiative.

In its final report, submitted onNovember 6, 2003, the subcommitteeproposed amendments to four of the34 sections of the bill, and recom-mended that one section be deleted.The report was endorsed by all themembers of the tripartite committee.

The amendments to the bill pro-posed in the report, and later accepted,were as follows:

a) The definition of bodies coveredby the bill (section 2) was altered toindicate all those supported by “publicfunds,” rather than the previous “taxrevenue,” which was considered bylegislators to be narrow and potential-ly misleading. Private bodies carryingout public functions are also coveredby the bill.

b) The clause providing for a publicinterest test to be applied in cases ofpossible exemptions on national secu-rity grounds (section 14(2)) wasamended to ensure that the determi-nation of an overriding public interestbe made by a court of law.

c) A separate public interest test incases of exemptions on grounds ofindividual privacy (section 17(3)) wassimilarly amended to require judicialreview.

d) A clause in the draft bill that hadcovered communications between taxauthorities and any taxpayer wasexpunged in its entirety. It wasthought the clause might encourage,rather than check, corruption, by per-mitting the manipulation of tax poli-cies by both government officials andtaxpayers.

e) Committee members alsorenamed the bill from “Freedom ofInformation Bill” to its present title.


The chair of the InformationCommittee, Alaba Lad-Ojomo, pre-sented the tripartite committee’s reportto the Committee of the Whole Houseon November 6, 2003. But it was notuntil August 5, 2004, that the Housereviewed the committee report, andinitiated the bill’s third reading. Afterextensive deliberations, the Committeeof the Whole House made a number of additional amendments to the bill.Significantly, the right of access toinformation was restricted to Nigeriancitizens only (in section 3), therebyreducing the bill’s scope in line withthe president’s original objections.

The House also extended the timelimit, from three to seven days, withinwhich public bodies that receive misdirected requests must transferthem to the appropriate body (section6(1)). On August 25, 2004, the Houseadopted the remaining provisions intheir entirety and passed the bill. Dueto sustained efforts from the FOICoalition, the Justice Initiative andother civil society groups, a clean finaldraft of the bill was made speedilyavailable to the Senate, where it passedits first reading on November 23,2004. Support in the Senate nowappears to be building.

The remaining challenges are, first,to ensure that momentum is main-tained through the two final Senatereadings, and second, to secure theeventual assent of President Obasanjo.While the president can veto any billpassed by both chambers, the NationalAssembly can, by a majority vote of two-thirds of both chambers, over-ride this veto. The FOI Bill is one oftwo key legislative efforts prioritized

by the Obasanjo administration in itsNational Economic EmpowermentDevelopment Strategy (NEEDS) docu-ment, earmarked for passage in 2004,because of their “ability to improvetransparency and accountability ingovernment fiscal operations andcheck unproductive public expendi-tures by all tiers of government.”2

With Obasanjo’s primary objectionconcerning access to noncitizensaddressed, the bill should now receivepresidential approval.

Civil society is already preparing toput the bill to work. One eagerly await-ed document is the May 2004 reportof the Human Rights InvestigationPanel set up by the Obasanjo adminis-tration and led by Justice ChukwudifuOputa, which reviewed rights viola-tions perpetrated by previous regimes.Increasing public availability of thou-sands of government records like this marks a new era of openness in Nigeria about the country’s recentpast, still often shrouded in secrecy.The bill is also a first step toward instituting a culture of transparencyand accountability in government.

Notes

† Maxwell Kadiri is program coordinator, Africa,with the Open Society Justice Initiative.

1 The members were: Frank Ineke, KGB Oguakaand Femi Gbajabiamila from the JusticeCommittee, Abdul Oroh, Edward Ogon, andJumoke Okoya Thomas from the Human RightsCommittee, and Francis Amadiegwu, GbengaMakanjuola, and Sani Buhari from theInformation Committee. The Honourable AlabaLad-Ojomo, who also chairs the InformationCommittee, chaired the subcommittee.

2 The second is a Fiscal Responsibility Bill, cur-rently being drafted by the office of BudgetMonitoring and Price Intelligence Unit(BMPIU) of the Presidency.


Copyright © 2005 Open Society Institute. All rights reserved.

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The Open Society Justice Initiative, an operational program of the OpenSociety Institute, pursues law reform activities grounded in the protectionof human rights, and contributes to the development of legal capacity foropen societies worldwide. The Justice Initiative combines litigation, legaladvocacy, technical assistance, and the dissemination of knowledge tosecure advances in five priority areas: national criminal justice, interna-tional justice, freedom of information and expression, equality and citizen-ship, and anticorruption. Its offices are in Abuja, Budapest, and New York.

BoardThe Justice Initiative is governed by a Board composed of the following members: Aryeh

Neier (Chair), Chaloka Beyani, Maja Daruwala, J. 'Kayode Fayemi, Anthony Lester QC,

Juan E. Méndez, Diane Orentlicher, Wiktor Osiatynski, András Sajó, Herman Schwartz

and Christopher E. Stone.

StaffThe staff includes James A. Goldston, executive director; Zaza Namoradze, Budapest office

director; Kelly Askin, senior legal officer, international justice; Helen Darbishire, senior

program manager, freedom of information and expression; Julia Harrington, senior legal

officer, equality and citizenship; Stephen Humphreys, senior officer, publications and

communications; Katy Mainelli, administrative manager; Chidi Odinkalu, senior legal offi-

cer, Africa; Darian Pavli, legal officer, freedom of information and expression; and Martin

Schönteich, senior legal officer, national criminal justice.

New York400 West 59th Street New York, NY 10019 USA Phone: +1 212-548-0157 Fax: +1 212-548-4662

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Editor: Stephen HumphreysExecutive Director: James A. GoldstonDesign: Andiron StudioPhotography: Valeria Tavares copyright © 2004

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