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Dealing with past human rights abuses
Wellington Mbofana, Financial Gazette (Zimbabwe)
March 20, 2008

It has been suggested on countless occasions that the reason President Robert Mugabe and a number of his henchmen will not relinquish power is because they are afraid of prosecution for genocide arising from Gukurahundi, crimes against humanity emanating from such campaigns as Murambatsvina and other gross human rights violations.

I am always fascinated to read or listen to debates on the emotive theme of prosecution of perpetrators of human rights violations. I must state from the outset that this article is not meant to critique recent contributions or statements by some opposition leaders on the subject but rather to broaden the debate on the emotive question of justice in transitional societies.

Many commentators share the popular ethical and legalist view of human rights organisations, which pushes for prosecution and punishment of those guilty of certain crimes. It is generally believed that such prosecution and the attendant punishment will serve as a deterrent to future tyrants and warmongers as well as act as a repository of collective memory for affected societies. This position, which has in our time guided the prosecution of war crimes and crimes against humanity, gained currency from the post World War II Nuremberg and Tokyo trials where perpetrators of war crimes were subjected to victors' justice.

While those who stood trial after the Second World War were powerless individuals representing vanquished regimes that had lost their weapons, tyrants in our contemporary times manage endemic systems that in most cases are not uprooted at the time of "democratic" change. It is very common for the security apparatus to be inherited with little changes after negotiated or peaceful regime change. This means continued influence of and allegiance to leaders of the different warring camps by some pockets of the securocrats. It is also not uncommon for ousted regimes to command some measure of political support in the populace. This means new governments would have to consider whether punishing war criminals would not provoke an armed backlash or civil unrest at the same time being mindful that perceived delays of justice would equally attract a backlash. It's a dilemma!

Chilean activist, Jose Zalaquett, at one time chairperson of the International Human Rights Internship Programme and member of the International Commission of Jurists, identifies "balancing ethical imperatives and political constraints" as the challenge of new democracies faced with a brutal past of human rights violations. Faced with such a dilemma, Max Weber suggests, in Politics, as a vocation that "political leaders should be guided by ethics of responsibility as opposed to the ethics of conviction". The former suggests acting guided by the predictable consequences of one's action and the later acting according to the law regardless of outcome! While the two are different and may seem diametrically opposed, each contains traces of the other though in smaller doses. Some have argued that it is better to suffer longer under tyranny with the hope of total victory than to make progress through conceding some compromises.

I am convinced such fundamentalist views are not raised by those at the receiving end of the gross abuses. Experience from post internecine conflict situations show that even with the best political settlement, perpetrators of heinous crimes would still wield political or military power or would still very much be entrenched in the bureaucracy and other state institutions. These could not be smoked out and the institutions overhauled overnight without causing other problems. In any transition compromises are made. Unfortunately when such decisions are made, the majority of citizens and the victims are not consulted for they simply would vote with their emotions.

As argued above, in some cases the effects of threatening, let alone pursuing those wielding power, are catastrophic. Buoyed by a possible victory in the Zimbabwe 2002 presidential election, an opposition party Member of Parliament was quoted as having made a populist announcement that once their candidate secured the ticket to State House, they would extend Chikurubi Maximum prison to accommodate perpetrators of crimes against humanity and other gross human rights violations especially from the top brass of the security forces. Predictably, the security chiefs responded unequivocally and commonsensical that that the presidency was a straight jacket and they were gatekeepers to State House. In other words, they would not let go of power to go and rot in Chikurubi!

That killed the contest. With hindsight, perhaps some form of accommodation and compromises with the establishment could have helped. Unbelievably the same drama unfolded in 2008! It remains to be seen whether the outcome will be different. The Patriotic Front of the late Dr Joshua Nkomo and President Mugabe made a lot of compromises at Lancaster. While many are apt to criticise the nationalists' concessions on the land, the reserved seats, protection of white minority interests etc, the truth is the leaders were confronted with the challenge of balancing the ethical imperatives of justice and the political constraints of dealing with their nemesis who still held enormous power in the security forces, the bureaucracy and the economy!

South Africa had a similar dilemma and they sensibly chose to compromise with the apartheid barons and their generals and gave in to what are popularly known as the "Sunset clauses". They are countless other examples. The cost of prosecuting some of the tyrants and perpetrators also poses an ethical dilemma. In the case of Sierra Leone, the UN backed Tribunal/Special Court was at inception estimated to require about US$4 billion. Similarly the expenses in the trials of Slobodan Milosevic in The Hague, perpetrators of the heinous Rwandan Genocide in Arusha, former Iraqi dictator Saddam Hussein in Iraq etc, runs into billions of dollars. In our modern and civilised world, even fallen tyrants and perpetrators of the most dehumanising crimes have rights to a fair trial (presumed innocent until proven guilty) and humane treatment at everyone's cost!

But the question is: Can't all the billions be used in rebuilding the lives of those who, like the "bush wives" of Sierra Leone, survived barbarism of the insurgents; the millions of Rwandese traumatised by the worst genocide of our time; the millions of Iraqis stripped of their dignity and humanity by torture and the millions of people in Yugoslavia who are still haunted by the mere mention of the name of the fallen dictator, Slobo? Justice as an end in dealing with past human rights abuses may be derived through different means as perceived from the point of view of the international community on one side and the victims on the other.

To the international community justice is attained through prosecution and punishment of offenders while the victims may see justice as reparation and prevention of recurrence. While in theory the two positions can be "mutually inclusive" or merged, in practice as mentioned above, they are actually mutually exclusive. It remains practicable however, to find ways to disclose the full truth about the past, remember the fallen, seek compensation for the victims of the greatest abuses and deter recurrence. Truth and reconciliation commissions, compensation funds and designation of special development areas as well as memorials and memorialisation in post conflict areas across the globe are attempts towards that.

*Wellington Mbofana is a Harare-based writer

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