In the ancient Spartan democracy, the all the citizens were directly involved in major decision-making processes. As populations and perhaps egos grew, it became impossible to involve everyone in the day to day running of state affairs. A class of fulltime governors who made decisions for the rest of the society evolved. Thus representative democracy was born. This brought about a class of people who by the virtue of their leadership positions acquired (and controlled) more information than the rest of the society.

As societies become more complex, governance processes generate more and more information. Those higher in the governance hierarchy are entrusted with higher levels of information and are privy to key decision making processes. Often, some of this access translates to personal privileges like business opportunities, personal influence and political power. This state of affairs has created a struggle between the rulers and the ruled over access to information. The rulers can only maintain their privileges by limiting access while the ruled have to protect their common good by accessing more, quality and timely information.

On July 14, after much advance publicity and fanfare, the prosecutor of the International Criminal Court applied for an arrest warrant for the president of Sudan, Omar Hassan Ahmad al-Bashir, on charges that included genocide, crimes against humanity and war crimes. Important questions of fact arise from the application as presented by the prosecutor. But even more important is the light this case sheds on the politics of the “new humanitarian order.”

The conflict in Darfur began as a civil war in 1987–89, before Bashir and his group came to power. It was marked by indiscriminate killing and mass slaughter on both sides. The language of genocide was first employed in that conflict. The Fur representative at the May 1989 reconciliation conference in El Fasher pointed to their adversaries and claimed that “the aim is a total holocaust and no less than the complete annihilation of the Fur people and all things Fur.” In response the Arab representative traced the origin of the conflict to “the end of the ’70s when ... the Arabs were depicted as foreigners who should be evicted from this area of Dar Fur.”

The ICC prosecutor, Luis Moreno-Ocampo, has uncritically taken on the point of view of one side in this conflict, a side that was speaking of a “holocaust” before Bashir came to power, and he attributes far too much responsibility for the killing to Bashir alone. He goes on to speak of “new settlers” in today’s Darfur, suggesting that he has internalized this partisan perspective.

At the same time, the prosecutor speaks in ignorance of history: “AL BASHIR…promoted the idea of a polarization between tribes aligned with him, whom he labeled ‘Arabs’ and...the Fur, Masalit and Zaghawa...derogatory [sic] referred to as ‘Zurgas’ or ‘Africans’.” The racialization of identities in Darfur has its roots in the British colonial period. As early as the late 1920s, the British tried to organize two confederations in Darfur: one Arab, the other black (Zurga). Racialized identities were incorporated into the census and provided the frame for government policy. It is not out of the blue that the two sides in the 1987–89 civil war described themselves as Arab and Zurga. If anything, the evidence shows that successive Sudanese governments — Bashir’s included — looked down on all Darfuris, non-Arab Zurga as well as Arab nomads.

Having falsely attributed to Bashir the racialization of the conflict, Moreno-Ocampo focuses on two consequences of the conflict in Darfur: ethnic cleansing through land-grabbing and atrocities in the camps. He attributes both to Bashir. He is again wrong. The land-grabbing has been a consequence of three different, if related, causes. The first is the colonial system, which reorganized Darfur as a series of tribal homelands, designating the largest for settled peasant tribes and none for fully nomadic tribes. The second is environmental degradation: according to the United Nations Environment Program, the Sahara expanded by 100 kilometers in four decades; this process reached a critical point in the mid-1980s, pushing all tribes of North Darfur, Arab and non-Arab, farther south, onto more fertile Fur and Masalit lands. This in turn led to a conflict between tribes with homelands and those without them. The imperative of sheer survival explains in part the unprecedented brutality of the violence in every successive war since 1987–89. The third cause came last: the brutal counterinsurgency unleashed by the Bashir regime in 2003–04 in response to an insurgency backed up by peasant tribes.

It is not just the early history of the conflict that the prosecutor is poorly informed about. In his eagerness to build a case, Moreno-Ocampo glosses over recent history as well. He charges Bashir with following up the mass slaughter of 2003–04 with attrition by other means in the camps: “He did not need bullets. He used other weapons: rape, hunger and fear.” This claim flies in the face of evidence from UN sources in Darfur, quoted by Julie Flint in the London Independent, that the death rate in the camps came down to around 200 a month from early 2005, less than in South Sudan or in the poor suburbs of Khartoum.

The point of the prosecutor’s case is to connect all consequences in Darfur to a single cause: Bashir. Moreno-Ocampo told journalists in The Hague, “What happened in Darfur is a consequence of Bashir’s will.” The prosecution of Bashir comes across as politicized justice. As such, it will undermine the legitimacy of the ICC and almost certainly will not help solve the crisis in Darfur. It is perhaps understandable that a prosecutor in a rush would gloss over all evidence that might undermine his case. But we must not. A workable solution to the conflict requires that all its causes be understood in their full complexity.

Darfur was the site of mass deaths in 2003–04. World Health Organization sources—still the most reliable available information on mortality levels then—trace these deaths to two major causes: roughly 80 percent to drought-related diarrhoea and 20 per cent to direct violence. There is no doubt that the perpetrators of violence should be held accountable, but when and how are political decisions that cannot belong to the ICC prosecutor. More than the innocence or guilt of the president of Sudan, it is the relationship between law and politics—including the politicization of the ICC—that poses a wider issue, one of greatest concern to African governments and peoples.

THE NEW HUMANITARIAN ORDER

When World War II broke out, the international order could be divided into two unequal parts: one privileged, the other subjugated; one a system of sovereign states in the Western Hemisphere, the other a colonial system in most of Africa, Asia and the Middle East. Post-war decolonization recognized former colonies as states, thereby expanding state sovereignty as a global principle of relations between states. The end of the cold war has led to another basic shift, heralding an international humanitarian order that promises to hold state sovereignty accountable to an international human rights standard. Many believe that we are in the throes of a systemic transition in international relations.

The standard of responsibility is no longer international law; it has shifted, fatefully, from law to rights. As the Bush Administration made patently clear at the time of the invasion of Iraq, humanitarian intervention does not need to abide by the law. Indeed, its defining characteristic is that it is beyond the law. It is this feature that makes humanitarian intervention the twin of the “war on terror.”

This new humanitarian order, officially adopted at the UN’s 2005 World Summit, claims responsibility for the protection of vulnerable populations. That responsibility is said to belong to “the international community,” to be exercised in practice by the UN, and in particular by the Security Council, whose permanent members are the great powers. This new order is sanctioned in a language that departs markedly from the older language of law and citizenship. It describes as “human” the populations to be protected and as “humanitarian” the crisis they suffer from, the intervention that promises to rescue them and the agencies that seek to carry out intervention. Whereas the language of sovereignty is profoundly political, that of humanitarian intervention is profoundly apolitical, and sometimes even anti-political. Looked at closely and critically, what we are witnessing is not a global but a partial transition. The transition from the old system of sovereignty to a new humanitarian order is confined to those states defined as “failed” or “rogue” states. The result is once again a bifurcated system, whereby state sovereignty obtains in large parts of the world but is suspended in more and more countries in Africa and the Middle East.

The Westphalian coin of state sovereignty is still the effective currency in the international system. It is worth looking at both sides of this coin: sovereignty and citizenship. If “sovereignty” remains the password to enter the passageway of international relations, “citizenship” still confers membership in the sovereign national political (state) community. Sovereignty and citizenship are not opposites; they go together. The state, after all, embodies the key political right of citizens: the right of collective self-determination.

The international humanitarian order, in contrast, does not acknowledge citizenship. Instead, it turns citizens into wards. The language of humanitarian intervention has cut its ties with the language of citizen rights. To the extent the global humanitarian order claims to stand for rights, these are residual rights of the human and not the full range of rights of the citizen. If the rights of the citizen are pointedly political, the rights of the human pertain to sheer survival; they are summed up in one word: protection. The new language refers to its subjects not as bearers of rights—and thus active agents in their emancipation—but as passive beneficiaries of an external “responsibility to protect.” Rather than rights-bearing citizens, beneficiaries of the humanitarian order are akin to recipients of charity. Humanitarianism does not claim to reinforce agency, only to sustain bare life. If anything, its tendency is to promote dependence. Humanitarianism heralds a system of trusteeship.

It takes no great intellectual effort to recognize that the responsibility to protect has always been the sovereign’s obligation. It is not that a new principle has been introduced; rather, its terms have been radically altered. To grasp this shift, we need to ask: who has the responsibility to protect whom, under what conditions and toward what end?

The era of the international humanitarian order is not entirely new. It draws on the history of modern Western colonialism. At the outset of colonial expansion in the eighteenth and nineteenth centuries, leading Western powers — Britain, France, Russia — claimed to protect “vulnerable groups.” When it came to countries controlled by rival powers, such as the Ottoman Empire, Western powers claimed to protect populations they considered vulnerable, mainly religious minorities like specific Christian denominations and Jews. In lands not yet colonized by any power, like South Asia and large parts of Africa, they highlighted local atrocities — such as female infanticide and suttee in India, and slavery in Africa — and pledged to protect victims from their rulers.

From this history was born the international regime of trusteeship exercised under the League of Nations. The League’s trust territories were mainly in Africa and the Middle East. They were created at the end of World War I, when colonies of defeated imperial powers (the Ottoman Empire, Germany and Italy) were handed over to the victorious powers, who pledged to administer them as guardians would administer wards, under the watchful eye of the League of Nations.

One of these trust territories was Rwanda, administered as a trust of Belgium until the 1959 Hutu Revolution. It was under the benevolent eye of the League of Nations that Belgium hardened Hutu and Tutsi into racialized identities, using the force of law to institutionalize an official system of discrimination between them. Thereby, Belgian colonialism laid the institutional groundwork for the genocide that followed half a century later. The Western powers that constituted the League of Nations could not hold Belgium accountable for the way it exercised an international trust, for one simple reason: to do so would have been to hold a mirror up to their own colonial record. Belgian rule in Rwanda was but a harder version of the indirect rule practiced to one degree or another by all Western powers in Africa. This system did not simply deny sovereignty to its colonies; it redesigned the administrative and political life of colonies by bringing each under a regime of group identity and rights. Belgian rule in Rwanda may have been an extreme version of colonialism, but it certainly was not exceptional.

Given the record of the League of Nations, it is worth asking how the new international regime of trusteeship would differ from the old one. What are the likely implications of the absence of citizenship rights at the core of this new system? Why would a regime of trusteeship not degenerate yet again into one of lack of accountability and responsibility?

On the face of it, these two systems — one defined by sovereignty and citizenship, the other by trusteeship and wardship — would seem to be contradictory rather than complementary. In practice, however, they are two parts of a bifurcated international system. One may ask how this bifurcated order is reproduced without the contradiction being flagrantly obvious, without it appearing like a contemporary version of the old colonial system of trusteeship. A part of the explanation lies in how power has managed to subvert the language of violence and war to serve its own claims.

SUBVERTING THE LANGUAGE OF GENOCIDE

War has long ceased to be a direct confrontation between the armed forces of two states. As became clear during the confrontation between the Allied and the Axis powers in World War II, in America’s Indochina War in the 1960s and ’70s, its Gulf War in 1991 and then again in its 2003 invasion of Iraq, states do not just target the armed forces of adversary states; they target society itself: war-related industry and infrastructure, economy and work force, and sometimes, as in the aerial bombardment of cities, the civilian population in general. The trend is for war to become generalized and indiscriminate. Modern war is total war.

This development in the nature of modern war has tended to follow an earlier development of counterinsurgency in colonial contexts. Faced with insurgent guerrillas who were simply armed civilians, colonial powers targeted the populations of occupied territories. When Mao Zedong wrote that guerrillas must be as fish in water, American counterinsurgency theorist Samuel Huntington, writing during the Vietnam War, responded that the object of counterinsurgency must be to drain the water and isolate the fish. But the practice is older than post–World War II counterinsurgency. It dates back to the earliest days of modernity, to settler-colonial wars against American Indians in the decades and centuries that followed 1492. Settler America pioneered the practice of interning civilian populations in what Americans called “reservations” and the British called “reserves,” a technology the Nazis would later develop into an extreme form called concentration camps. Often thought of as a British innovation put into effect during the late-nineteenth-century Boer War in South Africa, the practice of concentrating and interning populations in colonial wars was in origin an American settler contribution to the development of modern war.

The regime identified with the international humanitarian order makes a sharp distinction between genocide and other kinds of mass violence. The tendency is to be permissive of insurgency (liberation war), counterinsurgency (suppression of civil war or of rebel/revolutionary movements) and inter-state war as integral to the exercise of national sovereignty. Increasingly, they are taken as an inevitable if regrettable part of defending or asserting national sovereignty, domestically or internationally — but not genocide.

What, then, is the distinguishing feature of genocide? It is clearly not extreme violence against civilians, for that is very much a feature of both counterinsurgency and interstate war in these times. Only when extreme violence targets for annihilation a civilian population that is marked off as different “on grounds of race, ethnicity or religion” is that violence termed genocide. It is this aspect of the legal definition that has allowed “genocide” to be instrumentalized by big powers so as to target those newly independent states that they find unruly and want to discipline. More and more, universal condemnation is reserved for only one form of mass violence — genocide — as the ultimate crime, so much so that counterinsurgency and war appear to be normal developments. It is genocide that is said to be violence run amok, amoral, evil. The former is depicted as normal violence, and the latter as bad violence. Thus the tendency to call for “humanitarian intervention” only where mass slaughter is named “genocide.”

Given that the nature of twentieth-century “indirect rule” colonialism in Africa shaped the nature of administrative power along “tribal” (or ethnic) lines, it is not surprising that the exercise of power and responses to it tend to take “tribal” forms in newly independent states. From this point of view, there is little to distinguish between mass violence unleashed against civilians in Congo, northern Uganda, Mozambique, Angola, Darfur, Sierra Leone, Liberia, Ivory Coast and so on. So which ones are to be named “genocide” and which ones are not? Most important, who decides?

There is nothing new in legal concepts being used to serve the expedience of great powers. What is new about the “war on terror” is that action against certain forms of violence is simultaneously being moralized and legally deregulated. Is it then surprising that these very developments have led to violence run amok, as in Iraq after 2003 or, indeed, in Bashir’s own little war on terror in Darfur in 2003–04? As the new humanitarian order does away with legal limits to pre-emptive war—thus, to the global war on terror—it should not be surprising that counterinsurgency defines itself as a local war on terror.

The year 2003 saw the unfolding of two counterinsurgencies. One was in Iraq, and it grew out of foreign invasion. The other was in Darfur, and it grew as a response to an internal insurgency. The former involved a liberation war against a foreign occupation; the latter, a civil war in an independent state. True, if you were an Iraqi or a Darfuri, there was little difference between the brutality of the violence unleashed in either instance. Yet much energy has been invested in how to define the brutality in each instance: whether as counterinsurgency or as genocide. We have the astonishing spectacle of the state that has perpetrated extreme violence in Iraq, the United States, branding an adversary state, Sudan, as one that has perpetrated genocidal violence in Darfur. Even more astonishing, we have a citizens’ movement in America calling for a humanitarian intervention in Darfur while keeping mum about the violence in Iraq.

THE INTERNATIONAL CRIMINAL COURT

The emphasis on big powers as the protectors of rights internationally is increasingly being twinned with an emphasis on big powers as enforcers of justice internationally. This much is clear from a critical look at the short history of the International Criminal Court. The ICC was set up by treaty in Rome in 1998 to try the world’s most heinous crimes: mass murder and other systematic abuses. The relationship between the ICC and successive US administrations is instructive: it began with Washington criticizing the ICC and then turning it into a useful tool. The effort has been bipartisan: the first attempts to weaken the ICC and to create US exemptions from an emerging regime of international justice were made by leading Democrats during the Clinton Administration.

Washington’s concerns were spelled out in detail by a subsequent Republican ambassador to the UN, John Bolton: “Our main concern should be for our country’s top civilian and military leaders, those responsible for our defense and foreign policy.” Bolton went on to ask“ whether the United States was guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II” and answered in the affirmative: “Indeed, if anything, a straightforward reading of the language probably indicates that the court would find the United States guilty. A fortiori, these provisions seem to imply that the United States would have been guilty of a war crime for dropping atomic bombs on Hiroshima and Nagasaki. This is intolerable and unacceptable.” He also aired the concerns of America’s principal ally in the Middle East, Israel: “Thus, Israel justifiably feared in Rome that its pre-emptive strike in the Six-Day War almost certainly would have provoked a proceeding against top Israeli officials. Moreover, there is no doubt that Israel will be the target of a complaint concerning conditions and practices by the Israeli military in the West Bank and Gaza.”

When it came to signing the treaty, Washington balked. Once it was clear that it would not be able to keep the ICC from becoming a reality, the Bush Administration changed tactics and began signing bilateral agreements with countries whereby both signatories would pledge not to hand over each other’s nationals — even those accused of crimes against humanity — to the ICC. By mid-June 2003, the United States had signed such agreements with thirty-seven countries, starting with Sierra Leone, a site of massive atrocities.

The Bush Administration’s next move was accommodation, made possible by the kind of pragmatism practiced by the ICC’s leadership. The fact of mutual accommodation between the world’s only superpower and an international institution struggling to find its feet on the ground is clear if we take into account the four countries where the ICC has launched its investigations: Sudan, Uganda, Central African Republic and Congo. All are places where the United States has no major objection to the course chartered by ICC investigations. Its name notwithstanding, the ICC is rapidly turning into a Western court to try African crimes against humanity. It has targeted governments that are US adversaries and ignored actions the United States doesn’t oppose, like those of Uganda and Rwanda in eastern Congo, effectively conferring impunity on them.

If the ICC is accountable, it is to the Security Council, not the General Assembly. It is this relationship that India objected to when it—like the United States, China and Sudan—refused to sign the Rome Statute. India’s primary objection was summed up by “The Hindu”, India’s leading political daily, which argued that “granting powers to the Security Council to refer cases to the ICC, or to block them, was unacceptable, especially if its members were not all signatories to the treaty,” for it “provided escape routes for those accused of serious crimes but with clout in the U.N. body.” At the same time, “giving the Security Council power to refer cases from a non-signatory country to the ICC was against the Law of Treaties under which no country can be bound by the provisions of a treaty it has not signed.”

The absence of formal political accountability has led to the informal politicization of the ICC. No one should be surprised that the United States used its position as the leading power in the Security Council to advance its bid to capture the ICC. This is how The Hindu summed up the US relationship to the court: “The wheeling-dealing by which the U.S. has managed to maintain its exceptionalism to the ICC while assisting ‘to end the climate of impunity in Sudan’ makes a complete mockery of the ideals that informed the setting up of a permanent international criminal court to try perpetrators of the gravest of crimes against humanity.”

LAW AND POLITICS IN TRANSITIONAL SOCIETIES

Human rights fundamentalists argue for an international legal standard regardless of the political context of the country in question. Their point of view is bolstered by the widespread and understandable popular outrage, not just in the West but also throughout Africa, against the impunity with which a growing number of regimes have been resorting to slaughter to brutalize their populations into silence. The realization that the ICC has tended to focus only on African crimes, and mainly on crimes committed by adversaries of the United States, has introduced a note of sobriety into the African discussion, raising concerns about a politicized justice and wider questions about the relationship between law and politics.

In no country is the distinction between legal and political issues self-evident. In a democracy, the domain of the legal is defined through the political process. What would happen if we privileged the legal over the political, regardless of context? The experience of a range of transitional societies — post-Soviet, postapartheid and postcolonial — suggests that such a fundamentalism would call into question their political existence. Several post-Soviet societies of Eastern Europe with a history of extensive informing, spying and compromising have decided either not to open fully secret police and Communist Party files or to do so at a snail’s pace. Societies torn apart by civil war, like post-Franco Spain, have chosen amnesia over truth, for the simple reason that they have prioritized the need to forge a future over agreeing on the past. The contrast is provided by Bosnia and Rwanda, where the administration of justice became an international responsibility and the decision to detach war crimes from the underlying political reality has turned justice into a regime for settling scores.

Those who face human rights as the language of an externally driven “humanitarian intervention” have to contend with a legal regime where the content of human rights law is defined outside a political process—whether democratic or not—that includes them as formal participants. Particularly for those in Africa, the ICC heralds a regime of legal and political dependence, much as the postwar Bretton Woods institutions began to pioneer an international regime of economic dependence in the 1980s and ’90s. The real danger of detaching the legal from the political regime and handing it over to human rights fundamentalists is that it will turn the pursuit of justice into revenge-seeking, thereby obstructing the search for reconciliation and a durable peace. Does that mean that the very notion of justice must be postponed as disruptive of peace? No.

SURVIVORS’ JUSTICE

If peace and justice are to be complementary rather than conflicting objectives, we must distinguish victors’ justice from survivors’ justice: if one insists on distinguishing right from wrong, the other seeks to reconcile different rights. In a situation where there is no winner and thus no possibility of victors’ justice, survivors’ justice may indeed be the only form of justice possible. If Nuremberg is the paradigm for victors’ justice, South Africa’s postapartheid transition is the paradigm for survivors’ justice. The end of apartheid was driven by a key principle: forgive but do not forget. The first part of the compact was that the new power will forgive all past transgressions so long as they are publicly acknowledged as wrongs. There will be no prosecutions. The second was that there will be no forgetting and that henceforth rules of conduct must change, thereby ensuring a transition to a postapartheid order. It was South Africa’s good fortune that its transition was in the main internally driven. South Africa is not a solitary example but a prototype for conflicts raging across Africa about the shape of postcolonial political communities and the definition of membership in them. The agreement that ended the South Sudan war combined impunity for all participants with political reform. The same was true of the settlement ending Mozambique’s civil war. Had the ICC been involved in these conflicts in the way it is now in Darfur, it is doubtful there would be peace in either place.

© 2008 Mahmood Mamdani

* Mahmood Mamdani, Herbert Lehman Professor of Government at Columbia University, was director of the Institute of African Studies from 1999 to 2004. This article is excerpted from the conclusion to his book Saviors and Survivors: Darfur, Politics and the War on Terror, forthcoming from Pantheon in January 2009.

* This article also appeared in The Nation 29 September 2008. The article is reproduced here with the permission of the author.

* Please send comments to or comment online at http://www.pambazuka.org/

Zimbabwe’s three main political parties have signed a power-sharing agreement, bringing to an end to nearly 30 years of exclusive rule by Zanu-PF. President Thabo Mbeki of South Africa, facilitator of the Zimbabwe talks, told journalists that ‘a unanimous agreement, arrived at without any reservation by all the negotiating parties had been concluded.’ The AU Commission chairperson, Jean Ping, commending the Zimbabwean parties for arriving at the agreement, added that ‘the deal marked a turning point in efforts aimed at promoting reconciliation, stability and fostering conditions conducive for the recovery of the southern Africa country.’ In the power-sharing accord, President Robert Mugabe effectively remains head of state and government, chairman of the cabinet and commander-in-chief of the armed forces and his party will have 15 ministers in a 31-member cabinet. Morgan Tsvangirai will become prime minister and will have 13 cabinet ministers while Arthur Mutambara will be deputy prime minister and his party will have three ministers in cabinet. While the power sharing agreement has been widely acclaimed among policy makers, Johann Kriegler, a retired South African judge who is leading the independent commission investigating the integrity of Kenya’s 2007 elections, argued that the trend towards power sharing pacts was dangerous and warned that competitive elections, though costly, were 'cheaper than civil war'.

In peace and security related news, The AU commissioner for peace and security began a series of talks in Mauritania with the members of the country’s new governing body, the High State Council, the government, the political community and the civil society, in order to find a solution to the current crisis. Tanzania’s President Jakaya Kikwete, current chair of the AU, announced that Nigeria and Tanzania were seeking ways to stop the International Criminal Court’s plans to charge President Bashir, while affirming that the AU and United Nations would work with the Sudanese government to bring about peace and justice in Darfur.

In economic development news, the African Development Bank (AfDB) and the government of Japan signed a loan agreement to the AfDB of $300 million that will finance the bank’s private sector initiative. Meanwhile, the economic affairs department of the AU, in collaboration with the Regional Economic Communities and the Association of African Universities, has called for papers for the first congress of African economists.

Finally, the African Centre for Democracy and Human Rights Studies will host the Forum on the Participation of NGOs prior to the 44th ordinary session of the African Commission on Human and Peoples’ Rights in Abuja, Nigeria on November 7-9, 2008.

Angola opposition Unita on Friday contested at the Constitutional Court landmark elections in the capital, Luanda, where chaos resulted in a second day of voting last week. The former rebel movement last week accepted the result of nationwide parliamentary elections, with the ruling Popular Movement for the Liberation of Angola (MPLA) guaranteed a large victory.

A senior advisor to Morgan Tsvangirai on Friday said that they expect the country’s service chiefs to follow the laws of the country and support the government of the day and the new political dispensation, or resign. The heads of the country’s army, police, air force, CIO and prison services have often repeated statements that they will not salute the MDC leader. Tsvangirai is expected to be confirmed next week as the new Prime Minister of the country.

The deal reached between Zimbabwe’s political leaders has been greeted with caution from South African human rights groups and trade unions – as the world waits to see what the deal has in store for Zimbabwe’s future. Human Rights Activist and Chair of the Crisis in Zimbabwe Coalition in South Africa, Elinor Sisulu told Newsreel on Friday the group is ‘cautious’ about commenting on the deal until all the details have been released. She explained that so much needs to change in Zimbabwe and the deal needs to encompass these changes, including opening up the media channels.

The United Nations International Fund for Agricultural Development (IFAD) has announced a $22 million loan to Ghana to boost the livelihoods of over 100,000 households in the West African nation. The funds from IFAD are part of a larger $103 million initiative targeted at achieving sustainable livelihoods for poor people in rural areas, especially small farmers, women and vulnerable groups in northern Ghana.

The World Bank said Tuesday it has withdrawn financing of a Chad-Cameroon pipeline because the Chadian government failed to honor an agreement to use some oil revenues for poverty reduction. The Chadian government "fully" prepaid the loan as of Sept. 5, the development lender said in a statement.

The Southern African Development Community (SADC) free trade area (FTA) was launched on 17 August 2008 under the theme “SADC FTA for Growth, Development and Wealth Creation”. Eleven of the fourteen countries that comprise the SADC region are set to participate in the FTA.

A minister in South Sudan's government has said nationwide elections due by July 2009 could be delayed by at least six months. Minister for Presidential Affairs Luka Biong said torrential rain and a series of logistical problems could make it difficult to vote as scheduled.

Zimbabwe's President Robert Mugabe is to retain control of the army and chair cabinet meetings, according to leaks of Thursday's power-sharing deal. South African President Thabo Mbeki said Mr Mugabe had agreed to share power with Morgan Tsvangirai but said details would be released on Monday.

A South African court has ruled that a corruption case against ruling party leader Jacob Zuma cannot go ahead. He was facing charges of corruption, fraud and money laundering relating to a multi-billion dollar 1999 arms deal. A judge in Pietermaritzburg said there was reason to believe the decision to charge him was politically motivated.

The EU is to help African countries expand their electricity networks and promote energy interconnections between Africa and the EU, such as a Trans-Saharan gas pipeline. The EU aid will amount to €1 billion for a period of two years, the European Commission and the African Union announced in a joint statement on Monday (8 September).

A former U.N. employee went on trial in France on Tuesday accused of raping around 20 underaged girls during missions to Africa between 1998 and 2004. Didier Bourguet, a mechanic who worked for the United Nations from 1994, faces a prison sentence of up to 20 years if he is found guilty of a series of sexual offence and pornography charges ranging from rape to corruption of minors.

Over the past week, there has been a renewed Government proposal, seemingly in response to public comments by ex-PS John Githongo, to grant conditional amnesties for corruption as a means of dealing with the past. Githongo’s proposal seems to be based on one of the elements of the Usawa Programme an election manifesto proposal of the Orange Democratic Movement – Mr. Githongo is associated with authorship of Usawa’s anti-corruption aspects.

Sokari Ekine reviews this week the following blogsites:

CyBlug
Timbuktu Chronicles

Black Looks

During the 2007 election campaign period and beyond some of the most virulent hate messages of an ethnic kind were to be found spilling over in Kenyan online communities, largely populated by young to middle aged Kenyans living in places like the United States, Sweden, Germany, Britain, Ireland, Norway, Denmark, Canada, Saudi Arabia, South Korea, Japan, South Africa, India and other places overseas. I was once one of those Kenyans living for years and years in Toronto and Montreal

For the almost two decades that I resided in Canada I became quite perplexed and intrigued by the reckless display of rabid ukabila on display at various online Kenyan forums.

Many of the worst Kenyan tribalists in cyberspace have lived for years in such cosmopolitan and liberal urban locales such as Oakland, Boston, Toronto, Leeds, Dallas, St. Paul, Chicago and Washington DC.

Offline, these Kenyan immigrants and naturalized citizens in the West share the collective plight of other people of colour when it comes to systemic racism and discrimination. Some of them are married to Asian-Americans, Jamaican- Canadians, Zambians, Greeks and Iranians not to speak of fellow Kenyans from the very same ethnic groups they bash online about.

The question of ethnic identities in Kenya is intricately tied up with the country's politics and influences to a greater or lesser degree the class cleavages in ways which often defy orthodox analyses from the right or the left.

But if you ask Kenyans across the political, ethnic, racial and religious divide what is the cause of major political problems in Kenya, many of them will, without hesitation, cite "tribalism" as the number one problem. Depending on who you are talking to, it will be either those "Kikuyus"and their determination to hog all political and economic power to themselves. Or it will be those "Luos" who are perennial trouble makers and stone throwers not content with accepting the status quo. If you go down to the Coast, you may hear people grumbling about those upcountry "Wabara" people who have consciously marginalized the Coastals. A good friend of mine argued in a national newspaper column a few days ago that the "small tribes" have really been left out by the dogfights between the "major tribes". And on and on it goes with outbursts against those "Indians" when it comes to looking for a convenient scapegoat to explain away our economic woes.

Quite frankly these perceptions are naïve, shallow, ahistorical and dangerous.

There is no doubt that certain elites in Kenya converge around and along narrow ethnic or even sub-ethnic agendas that are detrimental to the national good. It is true that what passes for political parties in this country are frequently nothing more than vehicles of political expediency fueled by tribal agendas and tribal constituencies. It is also a fact that political elites have hijacked the neo-colonial state to divvy out economic goodies based on a system of ethnic and regional patronage. As someone who argues from socialist positions, I am also aware of the reductionism of certain doctrinaire approaches which reduces everything in society to class, overlooking gender, racial, religious, generational and other specificities. In other words, nobody in their right mind can downplay the corrosive and debilitating effects of what some observers call “negative ethnicity” in Kenya.

When I assert that using a broad ethnic brush to explain away our national problems is naïve, shallow, dangerous and ahistorical, I am merely pleading for a sober, scientific deconstruction of ethnic identities in Kenya based on our collectively lived historical experience.

THE POLITICAL ECONOMY OF ETHNIC IDENTITIES IN KENYA

The entity we now know as Kenya is a product of the historical interaction between diverse African peoples in this particular patch of the eastern part of our great continent with the forces of world monopoly capitalism. A version of the many anecdotes about the origin of the name Kenya has it that in the mid 1840s when a couple of German missionaries were busy exploring and “discovering” Africa they ran into a bunch of locals in the Mount Kenya region. Depending on whether it a Mgikuyu or a Mkamba retelling the story, Herr Krapf (or was it his counterpart Rebmann?) pointed to the snowy peaks of our tallest mountain and inquired via their guide about the name. He was allegedly told “ Kirinyaga” or “the place where God lives”. To his Teutonic ears, the German visitor heard and contracted it to “Kenya”, leaving us stuck with a distortion which ended up being the name of the country famous for its long distance runners, stunning environment and exotic wild life.

In a sense, our national identity was built on a stencil cut out by a clueless European traveler almost two hundred years ago.

More fundamentally, the process of “becoming Kenyan” was directly connected with the imperialist incursion at the tail end of the 19th century- from the ravenous carving up of the African continent at the 1884 Berlin Conference to the annexation of our country by the British, first by the Imperial British East Africa Company in 1888 to the formal declaration of Kenya as a British Protectorate in 1895 to the promulgamation of Kenya as a British Colony in 1920.

What hitherto had been a conglomeration of diverse Kenyan peoples at various stages of socio-economic development from the autonomous semi-feudal kingdom of Wanga in the west to the Ismalized coastal city states of Mombasa, Malindi, Lamu etc and the myriad communal, largely egalitarian communities among the Mijikenda, Luo, Agikuyu, Maasai and the like were now transformed into a territorially distinct “country” where each and every one of these diverse Kenyan people were considered “British subjects” subservient to the Crown in the UK; a colony where the best land was grabbed by racist British settlers; a missionary lab where Christian ideologues attempted to wipe out all vestiges of the indigenous traditional cultures; a tea, coffee and wheat plantation dotted with vast ranches- with most of the proceeds destined for the so called “mother country”.

The British foreign domination was of course resisted by communities all over Kenya. In 1895-96 Mbaruk al Amin Mazrui led a valiant guerrilla war against the invaders along the Kenyan coast. In 1913-15, Me Katilili, an octogenarian grandmother emerged as a leader of the Giriama people in Kilifi mobilizing local peasants to resist forced labour and compulsory taxation. For her efforts she earned herself the title of Kenya’s first political prisoner- forcibly exiled hundreds of miles away from her community but heroically escaping from custody to continue her fight. Among the Dawida, Mwangeka also led and inspired an uprising. At around the same time in central Kenya Waiyaki wa Hinga was leading the charge against the British- he was later buried alive in Kibwezi. Among the Nandi, Koitalel arap Samoei was conducting a ten year armed resistance to the incursion of British imperialism, symbolized by the Kenya-Uganda Railway. Other stalwarts of these early resistance movements include women like Syotuna among the Akamba and Moraa wa Ngiti among the Gusii- not to speak of later nationalist heroes like Harry Thuku, Mary Nyanjiru, James Beuttah, Makhan Singh, Elijah Masinde, Oginga Odinga, Chege wa Kibacia, Muindi Mbingu, JD Kali, Pio da Gama Pinto, Achieng’ Oneko, Fred Kubai and others.

In the end, to paraphrase Rudyard Kipling, the British had the Maxim gun and we did not.

One of the immediate consequences of the brutal British take over was the question of entrenching tribal identities at the expense of more nationwide agendas. First and foremost, even the question of who were and how we called ourselves was mediated by the British colonial state. A colonial bureaucrat had in 1917 written a memo cited by Professor Al Amin Mazrui in his book on the history and identity of the Swahili peoples stressing the urgency of enforcing tribal identities as a bulwark against growing national consciousness. It is for this reason that the colonialists outlawed nationwide social and political organizations, restricting people to such outfits like the Kikuyu Central Association, the Ukambani Members Association, the Kavirondo Tax Payers Association, the Taita Hills Association and so on. This did not prevent these associations from collaborating together in a joint anti-imperialist project for national independence.

The other noxious by-product of British colonialism was the phenomenon of being "named" and identified by our oppressors. For instance upto this day in 2008 it is standard practice to talk of the "Kikuyus" even though the proper name is the Agikuyu; people refer to the “Taitas” even though they call themselves the Dawida. Fortunately slurs like “Kavirondo” for the Luos; “Suk” for the Pokot and “Kitosh” for the Bukusu have long since been abandoned. In the 1930s the colonialists robbed the Yiaku people of the Mukogodo forest in Laikipia District just north of Nanyuki of their identity by forcibly merging them with the Maasai. One of the consequences of that is that today, among the 4,000 remnants of the Yiaku, LESS THAN TEN can still remember and speak of their mother tongue and the majority are in their eighties and nineties dying out by the year. Similarly, the original indigenous hunter-gatherer communities of Kenya like the Ogieks, the Njemps and others are often arbitrarily “absorbed” into more dominant ethnic groups.

Also in the colonial period certain artificial clusters were baptized “tribes” even though it was often a convenient fiction to suit certain political agendas. An example is the appellation, “Abaluhyia” to refer to several distinct linguistic groups (Samia, Abakhayo, Marachi, Manyala, Wanyore, Ikhisa, Tiriki, Maragoli, Bukusu, Isukha, Idakho, Marama) as one tribe. The same goes with the “Kalenjin” cluster which brings together the Kipsigis, Nandi, Tugen, Keiyo, Marakwet, Pokot and other communities. One can make a similar argument that there are no such group as the Meru, but rather it has to be broken down to the Tharaka, Chuka, Tigania, Imenti and Egoji people. Until recently the Mbeere people were lumped together with the Embu. And in the 1960s, for political hegemonic reasons the larger “Meru” and “Embu” communities were cynically appended to the Agikuyu.

That is why it is bizarre to see, read and hear of violent evictions of so called “enemy tribes” in the 21st century- killed and displaced using the spurious and specious excuse of “ethnic purity”- when no such purity existed in the first place and even if it did has been thoroughly eroded through inter-marriage, urbanization and resettlements across the country.

THE MYTH OF ETHNIC PURITY IN KENYA

Here is my theory about so called "Pure" Ethnic Identities in Kenya:

By and large, these are historically determined, socially constructed CONVENIENT community MYTHS.

Some years ago- 2005 to be exact- when I was still residing in the west end of Toronto, Canada, I ran into a middle aged Southern Sudanese who happened to be a Dinka. He had also lived in Kenya for over a decade and he told me his version of how the Southern Luos ended up in Kenya. He said that in Sudan they have another name for the Luos which means that this appellation came later in the history of this community.

My uncle, the veteran historian Prof. B.A. Ogot has documented in his seminal text on the Southern Luos how many Luhyia clans in Gem (Siaya District) were assimilated as Luos. And he should know- this grandson of Agina the son of Paulo Opiche and grandson of Ayieko. His grandfather is my father’s grandfather and my father told me that this polygamous ancestor of Onyango Oloo had both Luo and Luhyia wives. Ogot’s grandmother was a co-wife of my father’s paternal grandmother (who I was told by my own paternal grandmother was another Luhyia who did not speak a word of Luo. Interestingly enough my own “Luhyia” grandmother from Emanyulia- who spoke BETTER Dholuo than her sons and daughters- in law from Karachuonyo, Oyugis and Seme- startled me when she revealed to me sometime in 1972 or 1973 that her folks had actually been “Luos from Alego” who had resettled in Emanyulia near the Butere-Yala train tracks.

Quite frankly I never believed her- until over thirty years later, when a Kenyan woman born and raised in Emanyulia writing online from southern France repeated this story in a certain Kenyan cyberforum almost word for word- yes, indeed there was actually a Luhyia clan in Emanyulia who were originally Luos from Alego! She herself was quite conversant with the Luo language and had relatives from Anyiko on the outskirts of Yala Township.

When I once argued that many Kisiis are former Luos and many Luos are ex-Kisiis I was virtually slapped by tribal venom from Luo and Abagusii friends and colleagues of mine. But I was right: the Luos know it and the Kisiis know it.

It is just that our accumulated, largely mythological creation stories have encouraged us to imagine the "ethnic jirani other" as the enemy who stole our land, raped our grandmothers and placed a multi-generational pox on us.

I should have added that there are similar kinship ties among the Luos and the neighbouring Kalenjin communities. For instance, one of my sisters has a kid whose name is Samoei- even though the kid’s father is a Luo. But guess what, his grandmother is a Nandi. Back in my Luanda Dudi village in Kisa West, Khwisero, Western Province there was this old pint sized cattle-herd who never ever married. And he used to tell us that he was a Meru. Again, how far fetched that story is I am not sure.

What I am saying about Luos can be extended to the Agikuyu and the Maasai; the Akamba and Meru; the Waswahili na Mijikenda and even many Kenyans who imagine they are pure Wahindis. How many people know for instance that Kenya’s SECOND Vice President Joseph Murumbi was part Mhindi and part Maasai? How many people know that Najib Balala is part Mhindi and part Mwarabu (with probably some Mijikenda relatives somewhere down his lineage)? How many people know that John Keen’s father was of European descent? How about Kariuki Chotara? His last name is often a pejorative equivalent to the equally derogatory “Point Five” slur used to describe Kenyans of mixed race.

In my own immediate family I have cousins who have Swedish mothers; nephews who have Tanzanian fathers; in laws who are from Nanyuki. My own son has two Meru grandparents on one side- apart from the whole mchuzi mix on his father’s side.

Who knows what Kenyan communities and the attendant ethnic identities would have emerged had the British colonialists not invaded and occupied our lands?

Is it possible that over time, the Luos, the Luhyias and the Abagusii would have merged into a synthesized ethnic group called the Abagusiluohyias? Think of the stranglehold they would have on the Soccer Championships!

Could we be talking about the Maagikumerumbians?

Or the Akamboranas?

Or perhaps the Turkopokotomarkweiyo?

How about the Gujarasomalis or the Arabogiriamas?

The possibilities are just endless.

What happened in Kenya instead is the REALITY of historical colonial oppression.

About thirteen years ago I read a book called The Swahili: Idiom and Identity of an African People by author/activist/scholar Alamin Mazrui and Ibrahim Noor Shariff. Somewhere in the pages of that book I recall a passage about a 1917 letter from some colonial DC instructing other functionaries to do everything they can to foster tribal identities among the Kenyan nationalities as a way of thwarting the growth of a collective national consciousness.

This is one of the reasons why the first nationalist organizations had names like the Kikuyu Central Association, the Taita Hills Association; the Kavirondo Tax Payers Association, the Ukambani Members Association and so on and so forth. It is not that Kenyans back then were so tribal that they could only form “tribal bodies” - on the contrary - they wanted to form nationwide patriotic formations but this was considered a grave threat to the colonial status quo.

For evidence, you will find out that all these organizations collaborated and worked together and had a common anti-imperialist objective of fighting for Kenyan independence. As early as 1923 Kenyans of Indian descent defied the attempt to segregate them from their African brothers and sisters by leading the fight which led to the defeat of the White Paper which wanted to transform Kenya into an apartheid state like South Africa or the former Rhodesia.

When we pick up this multi-ethnic patriotic thread in 1990 when Kenneth Matiba and Charles Rubia and to a certain extent the Reverend Timothy Njoya went public with their agitation for multiparty democracy we should not forget the very important 1981 to 1990 chunk of underground anti-imperialist organizing featuring patriotic and again multi-ethnic formations like Second of March Movement, Cheche Kenya, the December Twelve Movement, the Kenya Anti-Imperialist Front, Harakati ya Kupambania Demokrasia Kenya, Upande Mwingine, the Kenya Socialist Alliance, Chama Cha Ukombozi, the Kenya National Front, the Kenya Revolutionary Movement, Ukenya, Umoja, Mwakenya, the Me Katilili Revolutionary Movement, the Kenya Patriotic Front, the Muungano wa Kupambania Demokrasia Kenya, the Organization for Democracy in Kenya, UWAKE, the Februray 18th Movement and many others that have slipped my mind.

As a rule all of the above formations were multiethnic, multiracial NATIONAL progressive and patriotic formations something that can be gauged by some of the insiders and foot soldiers- Ngugi wa Thiongo, Koigi wa Wamwere, Willy Mutunga, Alamin Mazrui, Abdilatif Abdalla, Shadrack Gutto, Micere Mugo, Edward Oyugi, John Munuve, Rubiik, Odindo Opiata, Adanje, Shadrack Mwarigha, Kathini Maloba, Maina wa Kinyatti, Ngugi wa Mirii, Kaara wa Macharia, Omondi K'Abir, Njuguna Mutahi, Wahu Kaara, Wang'ondu wa Kariuki, Mwandawiro Mghangha, Wafula Buke, John Odongo, Zarina Patel, Shiraz Durrani, Sultan Somji, Irung'u Houghton, Njeri Kabeberi, Jembe Mwakalu, Oduor Ongwen, Odenda Lumumba, the Mungai Brothers, Tirop arap Kitur, Onyango Oloo, Adongo Ogony, Kishushe Mzirai, Mwangi wa Githinji, Chitechi Osundwa, Karimi Nduthu, Yusuf Hassan, the late Mwakdua wa Mwachofi, and a whole bunch of other people some of whom are alive and some who have passed away.

Ironically, some of the "Young Turks" veterans were much, much older than the patriotic comrades that I have name-checked in the preceding paragraph. But again, you see them continuing the very same multi-ethnic NON-TRIBAL national tradition of political mobilization- FORD’s founders like the late Jaramogi and the late Mzee Muliro and Martin Shikuku, Jaduong’ George Nthenge, Kenneth Matiba and Shahib Bamhariz liaised with younger firebrands like Wamalwa Kijana, Raila Odinga, Paul Muite, Gitobu Imanyara, Anyang Nyongo, James Orengo, Murtaza Jaffer, Kiraitu Murungi and other patriots to create the massive opposition that would have surely toppled Moi in 1992-were it not for the artificially created schisms imported from without.

The period between 1992 and 1997 again exhibited yet another multi-ethnic phase of popular mobilization with the likes of Dr. Willy Mutunga, Njeri Kabeberi, Kivutha Kibwana, Timothy Njoya and Davinder Lamba forging the NCEC into the most militant and progressive political machine agitating for democratic reforms and constitutional change.

The period between 1998 and 2002 we saw the faith communities led by stalwarts like Ndingi Mwana Nzeki, David Gitari, Timothy Njoya and Reverend Mutava Musyimi picking up the thread from fiery clerics of an earlier era like Bishop Alexander Kipsang Muge and Henry Okullu to lead the fight for democratic reforms.

And of course we see the Unbwogable Eruption of 2002 leading to this massive anti-KANU pan Kenyan coalition umbrella group bringing together Charity Ngilu, Mwai Kibaki, Anyang Nyongo, Wamalwa Kijana, Raila Odinga, Najib Balala, Kipruto Kirwa, Mukhisa Kituyi, Kivutha Kibwana etc to confront and defeat the Moi-KANU dictatorship. Again we see that Kenyans coming together as Kenyans- not as Luos, Gikuyus, Kalenjins etc.

In summary, my argument in this section is that contrary to mainstream clichés, Kenyan politics has NOT always been dominated by narrow ethnicity as the driving force.

[To be continued]

* Onyango Oloo is Secretary General Social Democratic Party of Kenya Nairobi. This paper was delivered at the Goethe Institute, Nairobi on June 18, 2008. Be sure to look for Parts II and III in the next two issues of Pambazuka News.

* Please send comments to or comment online at http://www.pambazuka.org/

(We) are unable to forgive what (we) cannot punish and (we) are unable to punish what has turned out to be unforgivable - Hannah Arendt [1]

INTRODUCTION

The granting of amnesty [2] is by no means new in history. Religious testaments, notably the bible records the creator as saying, ‘I am the one who wipes away all your sins and remember them no more'[3]. Down through the ages, the practice has evolved not only as the exclusive of the divine, but has become an elastic and effective tool for striking compromise for peace by nations in transition. Consequently, amnesties have featured prominently at various times in the peace efforts of nations for the protagonists of war. With the establishment of the International Criminal Court (ICC), amnesties as a shield against accountability for international crimes have become a debatable prescription. At the heart of this argument are certain provisions of the Rome Statute of the ICC on the ‘complementary’ arrangement which allows the ICC to prosecute only when a national state is unwilling or unable to perform its prosecutorial role.

This essay argues that although the Rome Statute is silent about amnesties, the purport of amnesties which is not to condone impunity but to chart a path of peace agrees with the spirit of the Rome Statute which essentially is to end impunity and contribute to the prevention of international crimes. The essay concludes on the note that it is difficult for the International Criminal Court to ignore limited amnesties as a bargaining tool in civil wars or political crimes negotiations.

The following is taken from the introduction to Biko Lives! Contesting the Legacies of Steve Biko is edited by Andile Mngxitama, Amanda Alexander and Nigel C Gibson and published by Palgrave Macmillan.

"This is one country where it would be possible to create a capitalist black society, if whites were intelligent, if the nationalists were intelligent. And that capitalist black society, black middle class, would be very effective … South Africa could succeed in putting across to the world a pretty convincing, integrated picture, with still 70 percent of the population being underdogs." - Steve Biko (1972)

The 30th anniversary of Steve Biko's murder in police custody (on September 12 1977) comes almost 15 years after the formal ending of apartheid in South Africa. This fact alone raises several fundamental questions: how do we remember Biko? What contributions did the black consciousness movement make to the course of black liberation in South Africa and the world? How does the conception of black liberation, as enunciated by Biko and his colleagues, square up against the realities of post-apartheid South Africa?

Indeed, Biko lives today in South Africa, but so do the material outcomes of colonialism, segregation, apartheid and - most recently - neo-liberal economic policies. South Africa continues to be characterised by sharply contrasting realities.