The Role of African Civil Society in Shaping National Transitional Justice Agendas and Policies

by | Sep 23, 2019 | ACTA, ACTA 2016

The Role of African Civil Society in Shaping National Transitional Justice Agendas and Policies

Authors Hugo van der Merwe, Jasmina Bankovic

ISSN: 1996-2088
Affiliations: Head of Research, Centre for the Study of Violence and Reconciliation, South Africa; Senior Researcher, Centre for the Study of Violence and Reconciliation, South Africa
Source: Acta Juridica, 2016, p. 225 – 243

Abstract

Drawing on practitioner perspectives on 20 years of transitional advocacy efforts in Africa, this article examines the different roles that local civil society has played in shaping national transitional justice processes on the Continent. The article discusses how local organisations adopt, adapt and resist international criminal justice concepts and institutions in their pursuit of accountability, redress and social transformation in their countries. After first examining why civil society organisations are critical in a transitional justice context, the article discusses the range of contributions made by civil society using typologies that seek to make sense of different dimensions of their work. The article then discusses the substantive versus process goals of African organisations, as well as the various stages of civil society engagement across a transitional justice process. It concludes with a reflection on some of the main challenges facing organisations working on transitional justice in the region, particularly in developing and maintaining a locally relevant vision for transitional justice in each country. 

An Essential Intervention: Civil Society Responses to Redressing and Preventing Violence Against Women in Post-apartheid South Africa

by | Sep 23, 2019 | ACTA, ACTA 2016

An Essential Intervention: Civil Society Responses to Redressing and Preventing Violence Against Women in Post-apartheid South Africa

Authors Andrea Durbach

ISSN: 1996-2088
Affiliations: Professor of Law and Director, Australian Human Rights Centre, Faculty of Law, UNSW Australia
Source: Acta Juridica, 2016, p. 202 – 224

Abstract

Despite pervasive accounts of sexual violence against women throughout South Africa’s apartheid history, the definition of ‘gross violations of human rights’ in the legislation establishing the South African Truth and Reconciliation Commission (TRC) had no distinct reference to acts of sexual violence or gender-based crimes. Lobbying by women’s NGOs and civil society resulted in the TRC convening special women’s hearings and the expansion of the definition of ‘severe ill-treatment’ to encompass a range of abuses, including sexual violence. However, the TRC’s predominant focus on crimes of killing, abduction and torture resulted in the criticism that it exhibited ‘a blindness to the types of abuse predominantly experienced by women’,[fn1] excluding the possibility of accountability or reparations for these violations. This article explores the ‘essential relationship'[fn2] between civil society and the TRC at various stages of South Africa’s transition in holding the Government to account for restoring the ‘human and civil dignity’ of women who suffered gross violations of human rights, ‘many of which were gender specific in their exploitative and humiliating nature’.[fn3] Given that ‘violence against women has been one of the most prominent features of post-apartheid South Africa’,[fn4] the article further considers the innovation by South African civil society in developing various responses to this enduring harm, which extends beyond a compensatory model of reparations towards a transformation of the conditions that perpetuate the violence. footnote 1: Truth and Reconciliation Commission of South Africa Report vol 4 (1998) 318 para 144 (TRC Report). footnote 2: ‘Truth Commissions and NGOs: The Essential Relationship — The ”Frati Guidelines” for NGOs Engaging with Truth Commissions’ 2004 The International Center for Transitional Justice Occasional Paper Series. footnote 3: TRC Report vol 5 ch 6 para 161. footnote 4: L Vetten ‘Addressing Domestic Violence in South Africa: Reflections on Strategy and Practice’ 2, available at http://www.un.org/womenwatch/daw/egm/vaw-gp-2005/docs/experts/vetten.vaw.pdf.

Crisis and Contradiction: Justice Reform, Civil Society and Zimbabwe’s Long Transition

by | Sep 23, 2019 | ACTA, ACTA 2016

Crisis and Contradiction: Justice Reform, Civil Society and Zimbabwe’s Long Transition

Authors Mark Shaw

ISSN: 1996-2088
Affiliations: SARChI Chair of Justice and Security, Faculty of Law, University of Cape Town
Source: Acta Juridica, 2016, p. 179 – 201

Abstract

The nature of Zimbabwe’s long political transition since independence has caused untold damage to the country’s judiciary and court system. A strong and independent judiciary will be essential if the country is to successfully navigate the complex and competing politics that are likely to characterise post-Mugabe Zimbabwe and if there is to be any hope of, in the longer term, dealing with issues of transitional justice. While the politicisation of the judiciary is a well-recognised reality, in the context of a fiscal crisis, institutionalised corruption has become an increasing challenge. Nevertheless, the political ground is shifting, both as a result of the 2013 election and as actors begin to consider options for the post-Mugabe era. In this environment, it should not be assumed that staff in the judicial sector hold a uniform set of views. The current context requires that positions are carefully calibrated depending on audience and circumstance, but there are signs that some in the judiciary are acutely aware of the need to show more independence and fight corruption to gain a broader base of legitimacy. In that shifting political reality, the role of a small number of civil society activists working in the justice sector has become more crucial than ever. With little opportunity for raising issues of transitional justice in the current context, civil society must consider the nature of its engagement with the government to position it to play a constructive role in future State-building opportunities. Calibrating the nature and type of that engagement will depend on several possible political scenarios that are considered in this article.

Civil Society, ‘Positive Complementarity’ and the ‘Torture Docket’ Case

by | Sep 23, 2019 | ACTA, ACTA 2016

Civil Society, ‘Positive Complementarity’ and the ‘Torture Docket’ Case

Authors Max du Plessis, Christopher Gevers

ISSN: 1996-2088
Affiliations: Associate Professor, School of Law, University of KwaZulu-Natal; Lecturer, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2016, p. 158 – 176

Abstract

Complementarity is posited as a driving feature of the International Criminal Court (ICC) regime. Recent developments in Africa suggest a broader understanding of complementarity that is unfolding in practice and which is worthy of further exploration. The notion of ‘positive complementarity’ — ie that the Rome Statute (and the ICC) should encourage genuine national proceedings where possible, including in situation countries — is being expanded to encourage prosecutions, under the principle of universal jurisdiction, in situations where the ICC would not ordinarily have jurisdiction. In such circumstances, States can not just supplement, but augment the work of the ICC — acting where the ICC is unable to do so for lack of jurisdiction. In this article the authors consider this expanded ‘positive complementarity’ through the lens of a particular case regarding allegations of torture committed in Zimbabwe, by Zimbabweans, against Zimbabwean victims, but which case has been initiated and litigated in South Africa: the ‘Torture Docket’case. The article ends with five recommendations for civil society, arising from the ‘Torture Docket’ case and the notion of ‘positive complementarity’, which concern: (1) the role for civil society in the initiation of investigations, (2) the advantages of a dedicated domestic legal framework, (3) the challenge of managing expectations, (4) the challenge of complexity, and (5) the need for civil society intervention in ‘positive complementarity’cases.

Partners in Complementarity: The Role of Civil Society in the Investigation and Prosecution of International Crimes in South Africa

by | Sep 23, 2019 | ACTA, ACTA 2016

Partners in Complementarity: The Role of Civil Society in the Investigation and Prosecution of International Crimes in South Africa

Authors Hannah Woolaver

ISSN: 1996-2088
Affiliations: Senior Lecturer in Public International Law, University of Cape Town
Source: Acta Juridica, 2016, p. 129 – 157

Abstract

This paper assesses the role of civil society actors in the pursuit of international criminal justice in South Africa. The paper sets out the range of interventions that have been undertaken by civil society groups on issues of international criminal law in South Africa, and analyses the impact that such interventions have had on the action taken by South African authorities to investigate and prosecute international crimes. Three main types of interventions have been undertaken by South African civil society: campaigns to domesticate international crimes treaties, initiation of domestic litigation, and the submission of amicus curiae briefs. It is demonstrated that through these interventions, civil society has had a significant impact on the domestic legal framework governing the investigation and prosecution of international crimes in South Africa, and has prompted concrete action by State authorities to initiate international criminal proceedings. As such, civil society has played a key role in seeking to ensure that South Africa complies with its domestic and international legal obligations to investigate and prosecute international crimes, including those under the Rome Statute of the International Criminal Court.

Back to the Future?: Civil Society, the ‘Turn to Complementarity’ in Africa and Some Critical Concerns

by | Sep 23, 2019 | ACTA, ACTA 2016

Back to the Future?: Civil Society, the ‘Turn to Complementarity’ in Africa and Some Critical Concerns

Authors Christopher Gevers

ISSN: 1996-2088
Affiliations: Lecturer, School of Law, University of KwaZulu-Natal
Source: Acta Juridica, 2016, p. 95 – 126

Abstract

This paper critically considers the recent ‘turn to complementarity’in international criminal law: denoting an apparent shift towards the prosecution of international crimes at a domestic level. After placing this ‘turn’ within ongoing debates about the role of domestic trials in the history of international criminal law, the paper proceeds to consider four inter related reasons why the turn should be welcomed by supporters of the international criminal justice project. These are: (i) it reflects the ‘better’ interpretation of the Rome Statute; (ii) it might save the International Criminal Court (ICC) from itself, or at least international criminal law from the ICC; (iii) domestic trials arguably enjoy certain advantages over international trials generally; and (iv) it presents an opportunity to operationalise the nascent African regional framework for the domestic prosecution of international crimes. On this basis, the paper discusses how civil society organisations can support the domestic prosecution of international crimes under this regional framework (including by clarifying the operation of universal jurisdiction and the position of African states on immunity). The final part of the paper raises two critical concerns regarding the turn to complementarity, and the role of civil society organisations therein, namely: (i) that it risks lapsing or relapsing into colonial practices of ‘othering’ by focusing solely on ‘African complementarity’ or lapsing idiomatically into the language of ‘savages’; or (ii) it risks repeating the colonial double standard — based on an idealised Europe — in respect of the application of international criminal law generally, or complementarity in particular.