Academic journal article Strategic Review for Southern Africa

Decriminalisation of Mass Murders, Rape and Sexual Violence-A Critique of President Mbeki and Prof Mamdani

Academic journal article Strategic Review for Southern Africa

Decriminalisation of Mass Murders, Rape and Sexual Violence-A Critique of President Mbeki and Prof Mamdani

Article excerpt

In an opinion article titled "Courts can't end civil wars" by South African President Thabo Mbeki (1999-2008) and Prof Mahmood Mamdani of Makerere and Columbia Universities published in the New York Times (5 February 2014), the two argued that civil wars can only be ended by peace talks where former foes sit together at the negotiating table and hammer out political settlements. They suggested that threat of criminal prosecution can stifle peace efforts, presumably as leaders and warlords facing possible life sentences before International Criminal Court (ICC) calculate that they have nothing to lose by continuing to fight. Mbeki and Mamdani forcefully argued that the mass crimes committed in armed conflicts are political rather than criminal. They suggest it is preferable to suspend questions of criminal accountability until the underlying political problems are resolved. The argument fails to address the rights of victims and fair trial issues. It is a blueprint for impunity.

At a public debate on 14 February 2014 on the subject "Can Courts end civil wars?" organised jointly by Kenyatta University and the Nation Media Group's East African University Debate Series, Mamdani argued for decriminalisation of mass murder and drew a distinction between what he described as 'political violence' and 'criminal violence' Mamdani rejected what he termed a false divide between 'victims' and 'perpetrators', and submitted that there is a need for recognition of victims, perpetrators and bystanders as 'survivors' who have to live in peace. The lumping of victims alongside perpetrators is particularly disturbing for victims of rape and sexual violence. Arguably, Mamdani's logic that sustainable peace-making requires a "political process where all citizens--yesterday's victims, perpetrators and bystanders--may face one another as today's survivors", may politically sound persuasive, but it is disrespectful to victims.

Mamdani's other argument that "in civil wars no one is wholly innocent and one is wholly guilty [because] victims and perpetrators often trade places and each side has a narrative of violence", is flawed. Victims of rape do not trade places with their perpetrators. My experience at the International Criminal Tribunal for Rwanda (ICTR) is that many victims of rape who testified at Arusha before the Chambers do not consider perpetrators to be survivors.

Mbeki's and Mamdani's arguments that if the underlying motivation for mass murder, rape and sexual violence is political, then the resulting murder of innocent civilians must be treated as political rather than criminal, and that victims and perpetrators are all survivors, ignores basic legal principles that govern proof of guilt and individual criminal responsibility for crimes committed in internal armed conflict. Significantly, the fact that a perpetrator has a political constituency does not make his criminal acts legal. It is neither a lawful defence nor a reasonable excuse for a perpetrator of mass murder or rape to argue that he is a survivor by virtue of his political belief. The elements necessary to prove guilt of an accused, as well as the principles that govern individual or superior responsibility, are based on law, not on the political constituency to which an accused belongs.

Mbeki's and Mamdani's reasoning that "unlike criminal violence, political violence has a constituency and is driven by issues, not perpetrators" tends to justify criminal acts of the likes of General Mobutu of Zaire (Democratic Republic of the Congo--DRC) and General Amin of Uganda. These 'leaders' were responsible for mass murders in their respective countries yet, according to Mbeki and Mamdani, because they had 'political constituencies', they would not be held to account. Does this mean that Rwanda's genocide-era Prime Minister Kambanda and Liberia's war time President Taylor who had 'political constituencies' arguably should have been included in the post-conflict political arrangements? …

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