Transitional Justice and Women in Africa: How the Material Turn is still difficult to be seen?

Author: Cristiano d’Orsi
Research Fellow and Lecturer at the South African Research Chair in International Law (SARCIL), University of Johannesburg

As envisaged in the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), transitional processes should recognize the gendered nature of conflicts in which women are affected disproportionately, both directly and indirectly, by violence (see, for example, Article 10 –Right to Peace- and Article 11 –Protection of Women in Armed Conflicts-).[1] However, gender concerns in Africa have been rarely incorporated into Transnational Justice (TJ) through mainstreaming gender as a crosscutting issue. The nature of the violations to which women are usually subjected on the continent, and the impact of such violations on them, means that the issue of women and TJ should be treated on its own. Nevertheless, there is still a long way to go to comply with this measure. Normally, states emerging from conflicts or authoritarian repression should ensure women’s representation and participation at all stages of TJ processes by writing women’s participation into peace agreements and TJ laws and policies. Nevertheless, seldom has this been the case in Africa.

For example, with respect to the investigation and prosecution of sexual and gender-based violence, TJ processes should adopt measures that protect victims of such violence from social and cultural stigma and ameliorate procedural and evidentiary requirements that militate against their effective prosecution. A serious concern remains over the apparent continuum of violence facing women in societies emerging from conflict. For many women, sexual and gender-based violence is as prevalent during peace as during times of conflict but attention to these violations dissipates. African countries emerging from conflicts often face high levels of violent crime, which is exacerbated by weak and under-resourced justice sectors. Women who have been victims of gender-based violence also face considerable stigma, and there is often pressure to simply remain silent.

As of now, for Africa it would be already a success if all the cases of rape can be recognized like such, not only by judges in court but also by civil society. Unfortunately, rape culture, is many African countries is still a big problem. The expression “rape culture” refers to an environment in which sexual violence against women is normalized and excused in the media and popular culture.  Rape culture is perpetuated by misogynistic language, the glamorization of sexual violence and the objectification of women’s bodies, in that way creating a society that disrespects women’s rights and safety. For example, in South Africa marital rape is still often commonly accepted at a societal level and domestic courts are not always very prompt in condemning it either. In the words of  Nyasha Karimakwenda (2018) “[T]he culturally sanctioned rape myths create a common bond between rapist and judge, and they draw upon the same language and techniques to justify marital rape […] I drew out the neutralisation techniques exploited by the judges to minimise the culpability of the husbands who had been convicted of marital rape. Through the techniques of denial of injury and denial of the victim, the judges negated the human-ness and suffering of the victims” (at 223-224).[2]

This should also be coupled with recognizing the importance of the adoption of urgent measures to address the psychosocial, medical and livelihood needs of survivors of gender-based violence. On the domestic level, despite often depleted and fragile legislative and judicial infrastructure after a conflict, a number of countries have undertaken commitments to protect and enshrine gender concerns through both international and domestic instruments. Recent examples have shown, however, that enacting gender laws is only the beginning. A study from Liberia, which passed a Rape Amendment Act in 2006,[3] has revealed that challenges with prosecuting sexual crimes are due to both the inadequate judicial system and the lack of knowledge among victims of the stages and procedures for prosecuting offenders. In converse, a significant development in the field of reparations has been the delivery of reparations by military tribunals in the Democratic Republic of Congo (DRC). In April 2006, a military court in Mbdandaka found seven army officers guilty of mass rape of more than 119 women at Songo Mboyo in 2003 and sentenced them under the Rome Statute,[4] which the DRC ratified in 1998. This was the first time rape was tried as a crime against humanity in DRC, and the first such sentence against military personnel for these crimes. For the destruction of the village of Songo Mboyo and the mass rape, they received sentences of life imprisonment and the verdict required each victim’s family to receive reparations for US $10,000. Rape victims were to receive US $5,000.

In this scenario, it is clear that, primarily, African states should enforce the prohibition of discrimination against women, criminalise violence against women, including sexual violence, and harmful practices affecting women in accordance with national, regional and international human rights standards. Traditional authorities and others involved in TJ mechanisms should be educated and trained to ensure that customary law or practices that are incompatible with the human rights of women are no longer applied by TJ systems. Increased representation of women in traditional justice systems should also be encouraged.

In this context, there have been some promising efforts to improve the human rights practices of traditional justice systems. In Rwanda, an estimated 120,000 perpetrators were arrested at the end of the genocide in 1994 and projections were that it would take over 110 years to try all the detainees in the national courts.[5] Hence, the gacaca courts were established in 2001 as a means to speed up the process. These were intended to be community courts, presided over by village elders in the presence of the whole community, where any person could request to give testimony. Sentences were generally restorative and involved the perpetrator being required to engage in community-oriented work. Women were specifically included at a number of levels, and there have been widespread education campaigns to encourage women’s involvement in the courts. Unfortunately, while women of all ethnic groups had suffered gender-based crimes, Hutu victim-survivors were not eligible for compensatory assistance.

In spite of several efforts to change the situation, discrimination against women remains one of the most commonly cited human rights issues in the context of traditional TJ systems in Africa. While the level of female leadership in such systems remains low, there is evidence of positive developments in recent years. In Namibia, for example, it has been reported that, since independence, women have had a much greater role in traditional court meetings and been encouraged to play an active role, and have had leadership roles in certain villages.[6] In South Africa, women have been installed as traditional leaders. In a ground-breaking case in 2002, a woman was officially installed as a traditional leader, but her uncle’s son challenged this in the High Court in Pretoria claiming that it was in conflict with customary law. Relying on written customary law, the High Court ruled in favour of her uncle’s son, and the Supreme Court of Appeal, holding that succession followed particular customary rules, upheld this decision. The judgement was overturned in favour of the woman, on appeal to the Constitutional Court. The Constitutional Court held that “Customary law is by its nature a constantly evolving system. […] the content of customary law must be determined with reference to both the history and the usage of the community concerned” (Shilubana and Others v. Nwamitwa (CCT 03/07) [2008] ZACC 9; 2008 (9) BCLR 914 (CC); 2009 (2) SA 66 (CC), Judgment of 4 June 2008, paras. 45–49).[7]

Concerns about gender discrimination may stem in part from the reliance on mediation and reconciliation in dispute resolution, which may favour the more powerful male members of society, who may hold stereotypical views of women. Similarly, decisions made by the leaders of the community, or by the community as a whole, may disadvantage women, who typically are less powerful. More broadly, deep-seated stereotypes about the role of women in the community may play a role.

A priority for the international community to ensure that TJ processes are more gender-sensitive is to promote the greater participation of women in peace negotiations, where TJ mechanisms are often first outlined. In October 2000, the United Nations Security Council (UNSC) passed the historic Resolution No. 1325, which provided the first official endorsement of the inclusion of women in peace processes and the implementation of peace agreements by the UNSC. Regrettably, the nature of conflict often results in the exclusion of women’s voices from peace negotiations with their specific concerns not being addressed in any meaningful way in the peace-building process.[8]

The current discourse on TJ in Africa needs certainly to be broadened in order to promote more inclusive gender-oriented notions of justice. TJ initiatives are often devised in a way that reduce gender concerns to those of “victimhood”. The focus on women as victims not only perpetuate perceptions of women’s passive role during conflicts, but also silences other aspects of their experiences. Women’s multiple roles during a variety of recent conflicts were stressed, because they have been visible as cooks, porters, guards, perpetrators, as well as community leaders.

I do not think that, at least now, the material turn taken by TJ is really changing the life and perspectives of women in Africa. I would be very interested in delving into this topic to look for possible opportunities of improvement of the situation of women on the continent, although certainly not in the short/medium term.

[1] https://au.int/sites/default/files/treaties/37077-treaty-charter_on_rights_of_women_in_africa.pdf

[2] https://open.uct.ac.za/bitstream/handle/11427/30023/thesis_law_2018_karimakwenda_nyasha.pdf?sequence=1&isAllowed=y

[3] https://evaw-global-database.unwomen.org/-/media/files/un%20women/vaw/full%20text/africa/liberia%20-%20rape%20amendment%20act.pdf?vs=4125

[4] https://www.droitcongolais.info/files/4.30.-TMG_BDK,-Jgt-du-12-avril-2006,-complot-militaire.pdf

[5] https://library.oapen.org/bitstream/id/0be192c6-18d8-44c9-953e-c3c60ebe878c/external_content.pdf

[6] https://www.jstor.org/stable/25065065

[7] http://www.saflii.org/za/cases/ZACC/2008/9.html

[8] http://unscr.com/en/resolutions/doc/1325

About the Author:

Dr. Cristiano d’Orsi is a Lecturer and Senior Research Fellow at the South African Research Chair in International Law (SARCIL), Faculty of Law, University of Johannesburg. He holds a Laurea (BA (Hon) equivalent, International Relations, Università degli Studi di Perugia, Perugia); a Master’s Degree (Diplomatic Studies, Italian Society for International Organization (SIOI), Rome); a two-year Diplôme d’Etudes Approfondies (Master of Advanced Studies equivalent, International Relations (International Law), Graduate Institute for International and Development Studies, Geneva); and a Ph.D. in International Relations (International Law) from the same institution. In addition, Cristiano did post-doctoral studies at the University of Michigan Law School (Hugo Grotius Fellow) and at the Centre for Human Rights, University of Pretoria. Cristiano’s research interests mainly focus on the legal protection of asylum-seekers, refugees, migrants and IDPs in Africa, on African Human Rights Law, and, more broadly, on the development of Public International Law in Africa.