David Zounmenou, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Pretoria

The latest developments in Mali, coupled with the coup on 12 April in Guinea-Bissau, have left the Economic Community of West African States (ECOWAS) overwhelmed by an extremely challenging situation. Among the important issues that urgently need to be resolved is finding consensus over who should assume the interim presidency in Mali. Failing to resolve the political confusion in Bamako could have disastrous consequences, especially for people living in the north of the country.

On 8 May, ECOWAS representatives travelled to Mali to negotiate with the leaders of the military junta that had seized power in Bamako on 22 March. Foreign Ministers Adama Bictogo from Côte d’Ivoire and Djibril Basssolé from Burkina Faso were tasked with ironing out a major disagreement with the coup leaders over the modalities and timeframe for the transition to an elected government – a transition already agreed to by the junta following a deal in early April. According to the deal, ECOWAS would lift sanctions against the junta if it agreed to hand over power to civilians.

The bone of contention now appears to be the interpretation of the constitution and of this political agreement reached on 6 April. The junta’s fear that it might be stripped of its powers and influence if the transition lasts too long, seems to be at the heart of the dispute. Many are now asking whether the political elite and the military are making deals to stay in power without elections and are taking their compatriots for a ride. All this while the country is disintegrating.

While the junta initially agreed to step aside and accept a civilian government, they now want the leader of the coup, Amadou Sanogo, to become the new interim president once the term of the current interim president, Dioncounda Traoré, expires. Due to the junta’s ongoing resistance, the authority and credibility of ECOWAS could be at stake, as could the credibility of the Malian political elite. Meanwhile, groups operating in the northern region have enough time to consolidate their control with a potential risk of protracted proxy conflicts.

According to the Malian constitution, the current interim president, Traoré, was to govern for the initial transitional period of 40 days, following the premature stepping down of President Amadou Toumani Touré. Traoré’s role was to elect a new government and to lay the foundation for the return of constitutional normalcy. Neither the constitution nor the political agreement reached with the junta, however, prevents an extension of the interim period from 40 days to a year if the transition is to usher in a coherent political dispensation. In line with the constitutional provisions, the political agreement also provides for the transitional arrangements (article 5) and calls upon key actors to work out major tasks to undertake within the transitory period (article 6) to restore the democratisation process in Mali. However, it is unrealistic to expect any government in the current context to accomplish a political and security miracle in just 40 days. Most of this short time has already been wasted in the search for a ‘consensual’ prime minister. Meanwhile the political instability in Bamako is prolonging the agony of those in the north of the country, caught in the crossfire between the Touareg independence movement the National Movement for the Liberation of Azawad, its splinter group the National Front for the Liberation of Azawad, and the Islamist fundamentalists Ansardine backed by Al Qaeda in the Islamic Maghreb (AQIM).

It is not the first time ECOWAS has to face obstacles while trying to assist a member state in crisis. It has always been a challenge to overcome resistance from certain actors in the country and their interference in the process. Past interventions by the regional body in Guinea, following the coup by Captain Dadis Camara in 2008, in Niger against the attempts by former president Mamadou Tandja to stay in power, and in Cote d’Ivoire following the contested 2010 elections, were full of problems. In the end Camara was shot by a close collaborator, creating an opportunity for the completion of the transition in Guinea, while Tandja was deposed through a coup that paved the way for Niger’s return to democracy. Cote d’Ivoire’s former President Laurent Gbagbo exited power through a French-backed United Nations military intervention and is currently standing trial in The Hague.

While the political agreement between ECOWAS and the military junta was celebrated as a breakthrough since it paved the way for the return to civilian rule, it might have escaped the negotiators’ attention that nothing substantial could be achieved in 40 days, given the deterioration of the security situation in both Bamako and the north and the complexity of the issues at hand after the military coup.

ECOWAS obviously has remained faithful to its 2001 Additional Protocol on Democracy and Good Governance, particularly article 45, which provides for the normative framework to respond to political crises emanating from unconstitutional change of government and a series of sanctions in case of non-compliance. Initially, two important factors provided the regional organisation with the leverage to act decisively and press for a quick return to civilian rule in Bamako. Firstly, the firm stance taken by regional leaders against the coup and the threat of sanctions forced the junta into negotiation. Secondly, the rapid deterioration of the situation both in Bamako and in the northern region clearly exposed the unpreparedness of the junta to govern and its inability to establish its authority in Mali.

However, the seeds of the current stalemate were planted with the decision to immediately lift sanctions without any serious guarantees that the junta leaders would allow the transition to be completed without major hindrance and interference. It has become a classic pattern that military junta very seldom hand over power and ensure a peaceful and coherent transition without regional and extra-regional pressure. As was the case with Camara, Sanogo, the leader of the junta in Mali, has become a major threat to peace and stability. His insistence on remaining in control and defying the regional leaders and development partners makes the transition process extremely difficult. Meanwhile the humanitarian situation in the country is deteriorating rapidly.

Sanogo’s call for a national conference to chart a new path for Mali’s future is a fallacy that exposes the ambiguities of the junta’s real intentions at a time Mali needs a coherent and responsible leadership. It is seen as an attempt to neutralise the current interim president and his prime minister while paving the way for Sanogo to impose himself as a head of state. A precipitated national convention will certainly contribute to further confusion while citizens in the occupied regions need urgent humanitarian assistance.

In such a scenario, ECOWAS will be justified to reactivate its sanctions. While new sanctions may have some effect, the old ones should never have been lifted in the first place, nor should the junta have been granted amnesty. The junta is largely responsible for how the security situation has deteriorated in Mali. Its unwillingness to honour the original ECOWAS deal, which excluded military rule, calls for a very firm response from ECOWAS. And the political elite also needs to clearly identify where the priorities are for a speedy recovery of one of the most promising democracies in Africa.

]]> http://www.the-african.org/resolving-the-political-stalemate-in-mali/feed/ 0 http://www.the-african.org/the-costs-of-firearm-violence-a-national-public-health-priority/ http://www.the-african.org/the-costs-of-firearm-violence-a-national-public-health-priority/#comments Thu, 17 May 2012 08:16:48 +0000 Web Co-Ordinator http://www.the-african.org/?p=1096

Lauren Tracey, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

South Africa faces numerous challenges in preventing and reducing the levels of violence and crime. The burden of mortality and morbidity arising from violence and injury affects the lives of millions of individuals annually and continues to undermine social harmony and socio-economic development. This is, now more than ever, a national public health priority – one that needs to be monitored and controlled so as to limit the number of injuries and non-natural deaths in South Africa. However, inadequate data prevents institutions from accurately identifying the trends of firearm-related crime and its impact on society.

Considered one of the most common causes of mortality in South Africa, firearm violence has over the years continued to plague not only South Africa but also the entire continent. Data available in South Africa identifies firearms as one of the leading non-natural causes of death in the country, with handguns considered to be the weapon of choice among criminals.

Some of the ways in which criminals obtain firearms are through theft or through the South African Police Service (SAPS) and private individuals losing or misplacing weapons such as pistols, shotguns, rifles and revolvers. These have seen few recoveries. Increased acquisition of firearms by citizens for self-defence and illegal access to unlicensed firearms by individuals have further exacerbated the problem of firearm crime and violence in the country.

In measuring the socio-economic impact sustained by South Africa as a result of violence and more particularly firearm-related violence, it becomes clear that its magnitude can only be estimated. One way of doing this is by dividing the costs into direct costs; which include legal services, direct medical and incarceration costs and indirect costs such as productivity losses, lost earnings and psychological costs (pain and suffering). In South Africa, violence is the leading cause of death among the economically active age group of 15–54-year-olds. High levels of injury and death in this group place significant strain on the country’s economy, which results in loss of productivity and human capital, especially that of skilled capital necessary for economic growth.

Available data on the use of firearms in incidents of crime and violence is no longer as disaggregated as it used to be in the 1990s, and has not been made publically available by the SA Government since 2000. Firearms crime and violence trends can therefore only be speculated at by means of gathering data from media reports, aggregated SAPS violence and crime data, and various data collection systems such as Statistics South Africa (Stats SA) and the National Injury Mortality Surveillance System (NIMSS).

The effective collection of cause-of-death data plays a key role in the management and control of criminal and violent activities and is an essential component of health information systems. It assists hospitals, government and various other organisations in identifying the major causes of premature mortality, and it highlights the different health needs within a given community. In South Africa, limited reliable data on the extent of injury mortality and morbidity and its contribution to the country’s burden of disease and social ills continues to impact negatively on the country. This inability to capture data about injuries has negative consequences for the allocation of resources within the health services in South African hospitals, as it prevents them, other organisations and government from establishing effective injury prevention and control programmes.

Festus B Aboagye

The discourse about ‘responsibility to protect’ (R2P) as a global norm was particularly underscored by the Rwandan genocide, which pricked the conscience of the world to say ‘never again’.The United Nations (UN) General Assembly’s 2005 World Summit, which built on the work of the International Commission on Intervention and State Sovereignty (ICISS), serves as a useful benchmark for concrete attempts by the UN and the international community to gain traction for R2P.

Yet it would be incorrect to assume that R2P has been firmly established as a global norm and a universally applied practice in international politics.

WHEN TO INTERVENE?

The Arab Spring provides the most recent R2P test cases and some hard lessons about the future of this mechanism.

The different responses to the popular protests in Tunisia, Egypt, Libya, Yemen, Bahrain and Syria have raised serious questions about the principles of R2P, as well as about the process of determining the merits, means and methods of intervention.

Due to the nature of the involvement of the military in the revolutions in Tunisia and Egypt, to varying degrees, it would seem that there was no need for external intervention of any form.

Similarly in Yemen, although the situation remains unsettled, the transfer of power following the ousting of former president Ali Abdullah Saleh managed to appease the popular protests without any external military intervention.

The Bahraini uprising, however, led to a  military  operation,  although  not  one that supported the popular protests. In that country, the 14 February revolution reflected demands for greater Shiite political freedom, equality, participation and    emancipation    from    the    ethnocentrism and exclusionist politics of the minority Sunni.

The uprising for democratic reform was brutally suppressed by King Hamad’s police and buttressed by the declaration of martial law and a three-month state of emergency from mid-March 2011.

Furthermore, the Gulf Cooperation Council (GCC) Saudi-led Peninsular Shield Force (composed of 1 000 Saudi troops and 500 United Arab Emirates police) intervened, not to protect vulnerable Shiite populations but to support the government in imposing its will on the people.

Bahrain, at least for the moment, appears to have escaped vehement calls for any R2P intervention.

CONTROVERSIAL R2P IN LIBYA

Undoubtedly  the  most  significant  R2P episode last year was Libya, involving the conflicting  roles  and  positions  of  the League  of  Arab  States  and  the  African Union (AU), as well as the passing of UN Security   Council   (UNSC)   Resolution 1973, imposing a no-fly zone and authorising ‘all necessary means to protect civilians and civilian populated areas, except for “foreign occupation forces”’, among other measures, as well as the NATO-led agency in its implementation.

It was previously unimaginable to think of any form of challenge to Libyan strongman Muammar Gaddafi’s four- decade rule over a system instituted by him. Here, amid mixed signals of accommodation and outrage, Gaddafi unleashed the might of his military on popular protestors and warned: ‘We are coming and there will be no mercy!’

This coded message on 18 March was the trigger for the set-piece French air intervention on 19 March that, for all intents and purposes, halted the onslaught against Benghazi, where the protests had started in mid-February 2011.

The NATO-led air campaign succeed- ed in destroying Libya’s military capabilities, but it also provided a cover for the increasingly armed protestors under the leadership of the National Transitional Council (NTC) to destroy Gaddafi’s hold on the country by the end of October 2011. There are resentments over the NATO action as a cover for regime change and not in accordance with the principles of R2P.

Polarisation within regional organisations, or divergent or conflicting positions on the same conflict by different regional organisations, or one-sided tendencies coupled  with  inequalities  within  the UNSC and ‘bullying’ practices by its powerful members in deciding which issues are placed on the agenda, clearly pose great risks to effective R2P practice.

NO TEMPLATE OUTCOMES

Although R2P principles underscore a ‘case by case’-based application of collective action, predictability in R2P practice would serve to achieve at least two useful ends.

First, it would help to guarantee a degree of certainty, consistency and fair- ness in international politics of ensuring global peace and security.

Second,  state  and  non-state  actors alike would be certain that they would be held to account if and when they reneged on their responsibility to help prevent mass atrocities. It would therefore serve a preventive purpose, consistent with the principles of R2P, by convincing states of predictable consequences for allowing or being complicit in mass atrocities.

Regrettably, predictability is far from being a value to which the UNSC, regional organisations or the international com- munity attach any measure of importance.

Among other factors, national self- interest, lack of political will and deviant behaviour by state and non-state actors, as well as the international community, are to blame for this sad state of affairs.

Thus, for instance, the GCC countries have  strongly  advocated  for  military action against Syria but remained silent on referring the Bahrain situation to the UNSC.

In other words, they only deployed the Peninsula Shield to support the Bahraini authorities to put down what they labelled a rebellion instead of seeing it as a popular protest for the same political rights and freedoms that the people of Syria are asking for.

The voting patterns within the UNSC by both permanent and non-permanent members highlight selective tendencies in situations of what could reasonably be called mass atrocity.

The use of veto power seriously detracts from predictability when, for geopolitical reasons, powerful states proceed on a path of securing their regional security, economic and other interests in other parts of the world. This is the most reasonable way in which to explain the double standards in the treatment of Syria and Libya as opposed to Yemen and Bahrain, for instance.

Empirical evidence suggests that the UN and the international community may have been a bit hasty in concluding, shortly after the World Summit, that R2P had become a norm to be invoked in putting a halt to the specified crimes. Recent R2P practices, especially in the context of the Arab Spring, tend to suggest that R2P is still at best an emerging norm.

AN EMERGING NORM

R2P does not mean the same thing to all stakeholders within the UN system and the international community. Rather, inconsistencies in the interpretation and practice of R2P appear to suggest a tactical victory for ‘state sovereignty’ in the R2P discourse. That victory could only serve to keep or propel the normative R2P discourse to the strategic centre stage of international politics.

This calls for guarded optimism and avoidance of any quick assumption that R2P can be invoked in all cases when the ‘right’ criteria are met. More political and diplomatic work needs to be done to assure all stakeholders of a fair deal in the practice of R2P.

How, therefore, may the UN, regional organisations and the international community resolve the Syrian situation now and deal with situations like those of Libya and Côte d’Ivoire in the future?

It is possible that unless consensus is reached on the interpretation and application of R2P, there could be a rise in insurgencies, or some national, regional and international actors may arrogate to themselves the right of ‘humanitarian intervention’ and justify the end by the means.

Dr David Zounmenou

In  November  2011,  during  a  visit  to Benin, Pope Benedict XVI called upon African  leaders  to  govern  for  their people  and  to  place  the  principle  of social justice and humanism at the heart of their public actions.He lamented, ‘At this time, there are too many scandals and injustices, too much corruption and greed, too many errors and lies, too much violence which leads to misery and to death. These ills certainly afflict your continent, but they also afflict the rest of the world.’

Pope Benedict’s call came at a time when Africa continues to face tremendous sociopolitical and security challenges, in spite of the progress made over the past two decades towards creating an environment  conducive  to  economic growth, peace and prosperity.

Two main trends seem to define the current state of affairs on the continent.

On the other hand, the continent seems to be experiencing political stagnation and increasing political violence emanating from deliberate attempts by leaders to manipulate existing political, social, ethnic and religious differences.

In the face of those two contradictory trends, Pope Benedict called for some kind of ethical renewal in the way politics plays itself out on the continent to preserve the fragile social, political and economic gains of the past two decades.

MACHIAVELLIAN AFRICAN LEADERS

The debate about ethics in political life is not new and there exists an abundance of literature on the subject. Politics has long been associated with the art of manipulation,  and  this  has  gained  momentum lately, inspired by the maxims of the Italian political scientist and philosopher Niccolo Machiavelli.

It is as though our politicians have tried their best to uphold Machiavelli’s submissions to the letter and assigned themselves the task of living up to his maxims. The late president of the former Zaïre, Mobutu Sese Seko, is said to have mastered Machiavellian doctrine to such an extent that his exit from the political scene resulted in the descent of his country into decades of war and chaos.

RESISTANCE TO DEMOCRATISATION

Political activities have become a serious threat to peace and prosperity in many countries in Africa. Resistance to genuine democratisation has manifested itself through many incidents of election-related and other political violence. For example, Liberia’s post-conflict reconstruction achievements were nearly reversed with the violence that marred the presidential elections in October and November 2011, when the incumbent president and first elected female head of state in Africa, Ellen Johnson Sirleaf, renounced her promise to serve only one term and sought a second term to complete her reform projects.

The same argument was used by the former president of Niger, Mamadou Tandja, and is currently being used by Abdoulaye Wade in Senegal, with each respective country being thrown into unnecessary political turmoil as a result.

Attempts to explain why leaders so quickly turn their back on their promises found that fear of prosecution, an appetite for power, and uncertainties about life after power contribute to their desire to hold on to it.

Indeed, Wade’s attempt to hold on to power after completing his two terms (12 years) has been one of the biggest tests of political stability this year. While his argument might be constitutionally valid, it is ethically controversial and has caused serious social upheaval and political conflict in Senegal.

Although active armed conflicts are in a sharp decline on the continent and elections rather than coups d’état have become the norm, political violence is arguably on the rise.

As the methods of political manipulation become more subtle, the reactions of citizens – generally, large groups of young people without many socioeconomic opportunities – seem to be becoming increasingly violent.

In many instances, political manipulation focuses on the electoral process and encompasses  four  broad  initiatives. Firstly, it begins with opportunistic state decisions to amend the existing electoral laws to hold one-round elections (as in Gabon, Togo and the DRC), on the premise of national sovereignty and financial constraints.

Secondly, existing governments ensure their control over electoral monitoring bodies, including the constitutional councils, which are often led by prominent law- yers with a questionable sense of neutrality and independence. The constitutional councils (or the supreme courts, in some instances) ‘declare’ the winners of elections sometimes contrary to the real expression of the people’s will.

Thirdly, they seek to exclude citizens perceived as favouring opposition movements from the voter’s roll while inflating the numbers of voters loyal to the ruling elite.

Finally, they deploy special army units to violently repress any attempt at popular protest. The violent clashes that followed the elections in the DRC, Liberia, Senegal and many other countries call into question the integrity of some of the recent electoral processes and political decisions in Africa.

POLITICAL  INSTABILITY THREATENS  GROWTH

The idea of providing incentives for leaders to step down peacefully is, at best, myopic, as leaders generally lose sight of the moral authority and influence they could enjoy in respecting the constitutional term limits and effectively delivering public goods to their citizens.

As the AU decides to make 2012 a year of ‘shared values’, it is imperative that democracy and good governance norms be given substantial support to reduce incidents of political violence.

The ratification earlier this year of the 2007 African Charter on Democracy, Elections and Governance is an important milestone. However, it will be useless if efforts are not made for its domestication and, essentially, if political actors do not strictly adhere to its key principles.

Political instability is a threat to economic growth, and widespread corruption is a major obstacle to the fair distribution of national wealth. The ensuing resentment could be detrimental to the economic prospects foreseen for the continent by major financial institutions, as well as to the survival of the political elite.

There is a great need to heed Pope Benedict’s concluding words: ‘We are faced with legitimate demands, present in all countries, for greater dignity and above all for greater humanity. Man demands that his humanity be respected and promoted. Political and economic leaders of countries find themselves placed before important decisions and choices, which they can no longer avoid.

‘I launch an appeal to all political and economic  leaders  of  African  countries and the rest of the world. Do not deprive your peoples of hope. Do not cut them off from their future by mutilating their present. Adopt a courageous ethical approach to your responsibilities.’

Etienne Tshisekedi

Widespread electoral fraud, opposition protests, tepid criticism from a worn-out in- ternational community, and a ruling party indifferent to its lack of legitimacy – the DRC’s 2011 legislative and presidential elections meet all the stereo- types of a botched African election.

But for the DRC’s 60 million people, the bungled electoral process means that their future again hangs in the balance. Instead of consolidating a fragile democratic process that started with the conclusion of a peace agreement in 2002 and culminated in the 2006 election, the bungled 2011 polls  have left the country deeply divided and facing an uncertain political and economic future.

Political scientist and director of Kinshasa’s Pan-African Institute for Inter- national and Strategic Relations, Professor Philippe Biyoya, said, ‘We are in a very pre- carious situation, because the elections were not a moment of reinforcement of national cohesion which could have increased our capacity to move towards a stable future… The elections have not given our institutions strength. They are another war.’

The trouble started long before the elections, with the appointment of a Kabila crony – Pastor Ngoy Mulunda – as president of the Independent National Electoral Commission (CENI). This seriously undermined   the   commission’s   credibility, and sparked a series of challenges from the political opposition.

Already heavily politicised, the CENI then got off to a slow start and was forced to organise the elections under tremendous time pressure as the schedule had already been delayed several times. And there were other serious challenges: in 2006, the Unit- ed Nations Mission in the DRC (MONUC) organised the elections, coming to the par- ty with its massive logistical and administrative capabilities, while the local electoral commission played a supporting role.

In  2011,  the  UN  mission  (which  in 2010 was renamed the United Nations Stabilisation Mission in the DRC, or MONUSCO) assisted with logistical support – but its role was significantly reduced, and the CENI was in charge of the overall process.

KABILA’S LEGITIMACY QUESTIONED

Many of these issues had been pushed by President Joseph Kabila himself. Kabila has long had a ‘love/hate’ relationship with the international community and he is not shy to openly criticise Western donors, some- times accusing them of violating the DRC’s sovereignty. It was Kabila who pushed for a reduced mandate for the UN peacekeeping mission, and who insisted that the CENI take the lead on the 2011 elections.

Vincent Tohbi, former DRC country director and now director of programmes at the Electoral Institute for Sustainable Democracy in Africa (EISA), says that, in principle, it was right for the CENI to take charge of the process this time around. ‘We understand that is the case in all countries emerging from long periods of war and UN supremacy. Once people have legitimacy, they say, “We want our sovereignty; we want to do our thing,” which is good. But when you do that you have to have the means and the capacity, otherwise you go straight against the wall. By the time the CENI decided to have open collaboration with the [other electoral players], it was late. They thought that being ready finan- cially meant that they would be ready in terms of skills and capacity and logistics.’

Where   does   this   leave   the   DRC? Kabila’s legitimacy as president is in doubt – according to the official results, he won with 48% of the vote, against opposition leader Etienne Tshisekedi’s 32%.

International observer missions such as the European Union and the Carter Center noted incidents of serious fraud and irregularity and have asked for further investigation but stopped short of saying that the outcome was illegitimate, and most Western governments have acknowledged Kabila as the legitimate president.

Domestically, the powerful and well- respected Catholic Church, which deployed

6 000 domestic observers, has been more outspoken in denouncing the election. Since then its leader, Cardinal Laurent Monsengwo, has found himself the target of vicious attacks in the pro-Kabila media.

A DAMAGING BOYCOTT

The outcome of the legislative elections, with the presidential alliance (Majorité Presidentielle, or MP) winning 340 of 500 seats, has also been widely contested. The new parliament is composed of members of a dizzying number of political parties – 98 in total – most of which were either created by the ruling party or aligned themselves with the MP out of political expediency rather than ideological kinship.

As many as 45 parties are represented by only one seat. Nonetheless, even these parties will expect to be rewarded for their contribution to the overall victory of the alliance. Says Professor Biyoya: ‘Instead of forming one popular party, they divided their forces… they are all in the minority because no one has more than 100 seats… All these people came to [politics] to become ministers, not parliamentary deputies.’

Managing the demands of all these hangers-on will be a major headache for the president in the formation of his new government as well as in the  day-to-day  management of parliament. There are already reports that the loose- knit group may split.

But by far the most significant problem is that political opposition parties allied to Tshisekedi’s Union pour la Démocratie et le Progrès Social (UDPS) are boycotting parliament, leaving close to 100 opposition seats empty. The UDPS alone won 41 seats and its political allies several dozen more. This weakens the political op- position, and diminishes its overall lever- age.

Tshisekedi, who declared himself president  in  December,  has  demanded that the elections be cancelled and that there be a political dialogue to chart the future. Tshisekedi’s political advisor and hard-line supporter Valentin Mubake has likened suggestions that the UDPS participate  in  parliament  to  eating  poisoned food, and he rejects the idea that an opposition boycott plays into the hands of the presidential majority.

Stephanie Wolters is a conflict analyst and journalist specialising in the DRC. She is also a director of Okapi Consulting.

Dr Paul Simon Handy

Liesl Louw-Vaudran et Paul-Simon Handy discute de la situation dans l’est du République Démocratique du Congo, la victoire du FLN lors des dernières élections en Algérie et l’envoie des troupes de l’Ecowas au Mali et en Guinée Bissau

Dr Paul Simon Handy

Liesl Louw-Vaudran speaks to Paul-Simon Handy about the hunt for dissident general Bosco Ntaganda in the eastern DRC, the overwhelming win for the ruling FLN in Algeria and the chances of success for Ecowas military intervention in Mali and Guinea Bissau

 Hamadziripi Tamukamoyo, Researcher, Crime and Justice Programme, ISS Pretoria

 On Freedom Day, 27 April, it was announced that South African President Jacob Zuma had decided to exercise his mandate in terms of the Constitution to grant special remission of sentence to certain categories of offenders ‘in the spirit of Freedom Day’. ‘The power [of] the president to change sentences or grant pardons is provided for in our Constitution, is a normal practice in democracies worldwide and is used to recognise or commemorate special events in the life of a country and nation,’ stated the announcement by the presidency. However, the question can be asked whether these pardons are of any value and whether they have a place in a modern democratic system that is based on the principle of the rule of law. Is this done for political reasons, given that the real reason for overcrowding in South African facilities is the large number of unsentenced and awaiting trial prisoners?

The practice of handing out executive pardons can be traced to the English kings who were vested with the power to rescind any sentence, given that absolute power rested in their hands. It has remained a feature of many democracies around the world and it is invoked in different circumstances and for a range of reasons.

When announcing the recent remission of sentences in South Africa, it was stated that:

• all sentenced inmates, probationers and parolees will be granted a six-month remission of sentence. Those who have not been convicted of aggressive, sexual, firearm and drug-related offences, will receive an additional 12 months off their sentences;
• escapees and absconders who are still at large are excluded from the special remission; and,
• 14 651 sentenced inmates will be released conditionally or unconditionally in terms of this process, as well as an approximate 20 855 probationers and parolees.

The SA government’s Justice, Crime Prevention and Security Cluster (JCPS) projects that the remission of sentences will reduce the level of overcrowding in correctional centres from 34% to approximately 20%. Though the cluster says that this decision is governed by ‘placing safety first and promoting shared responsibility for the correction of offending behaviour as well as for rehabilitation’, there has been concern over the possible negative impact this will have on public safety and the rule of law.

The official opposition Democratic Alliance (DA) said that ‘lessons have not been learnt from the flaws that marred a similar process seven years ago’ under then president Thabo Mbeki. DA MP and the party’s spokesperson for correctional services, James Selfe, noted that the remission did not allow for a case-by-case consideration of each offender’s circumstances, or state of rehabilitation. Selfe also said, ‘We believe that the premature release of un-rehabilitated prisoners is a danger to the public. Prisoners should be properly rehabilitated before they are allowed to walk the streets again. If they are not, they are likely to reoffend and end up back in jail, defeating the purpose of the special remission, which is to alleviate overcrowding.’

The JCPS in a media statement dated 28 April stated, ‘The reduced level of overcrowding in correctional centres will create a conducive environment for delivering effective rehabilitation programmes to offenders.’ What is missing from the statement is an acknowledgement of the reality that overcrowding is mostly a challenge in those facilities holding unsentenced and awaiting trial prisoners. Facilities for sentenced inmates operate at or below the required capacity. Clare Ballard, a legal researcher at the Community Law Centre’s Prison Reform Initiative at the University of the Western Cape, has noted, ‘Our very high awaiting trial population means there’s a huge bottleneck and the criminal justice system is broken. That’s where the problem is. If the president wanted to focus our attention on something it should be that.’ It is profoundly misleading to simply assert that the impetus for the remission of sentences is to reduce overcrowding in facilities without disaggregating the numbers as to where the overcrowding occurs.

In South Africa, one of the reasons given by the Executive to justify pardons is that it is a common practice across the globe. While this is true, some segments of society have questioned this, arguing that granting pardons simply to emulate the practice in other countries does not necessarily mean that it is appropriate in the South African context. Proponents of this view further argue that in the case of sentenced offenders, evidence would have been tested before the courts and the presiding judicial officers reached the conclusion that the accused individuals are indeed guilty and therefore should serve time. They note that the remission of sentences and release of inmates undermines the independence of the judiciary. Yet, others believe that the remission of sentences is justifiable in the case of geriatric inmates and those who are terminally ill. However, this is provided for in legislation and can be undertaken on a case-by-case basis through parole boards.

Although there have been assurances from the Department of Correctional Services (DCS) that the lessons from past remissions have been learnt, some have warned that the DCS is not equipped to adequately manage either the remission or the post-release process. This is a crucial point considering that for years the DCS has failed to recruit and retain staff at the appropriate levels. In addition, there has been a continued disproportionate allocation of the budget, with the rehabilitation and well-being of offenders receiving the smallest share.

It should be acknowledged that there are robust arguments that those offenders with sentences of two years or less for non-violent offences should never be imprisoned. This is because such offenders do not qualify for sentence plans and therefore do not receive rehabilitation-type services while in prison. Proponents of this view argue that in these cases prison intensifies the prisoners’ alienation from society, making it harder for them to re-integrate into society and the job market, and therefore there is value in the pardons.

The remission could be viewed through a political lens, particularly in the context of the run-up to the ANC election conference in Mangaung in December 2012. Zuma may believe that by pardoning inmates, the ANC voting delegates will perceive him as a benevolent leader who cares for the plight of those in prison and consequently, the majority of South Africans.

If Zuma really cares about the overcrowding in correctional facilities there are several steps he could take using his executive powers, including:

 Indeed, Zuma does have an opportunity to leave a legacy of an efficient and fair criminal justice system that is accessible to all. However, to accomplish this the Executive will need to go beyond the rhetorical mantra that remission of prison sentences and the release of inmates addresses the challenge of overcrowding in correctional facilities. It is clear that South Africa’s justice system, particularly in the lower courts, urgently has to deal with the panoply of bottlenecks that cause a disproportionately large unsentenced and awaiting trial inmate population.

Gareth Newham

Liesl Louw-Vaudran speaks to Gareth Newham, head of the Crime and Justice Programme of the ISS about the sidelining of former crime intelligence boss Richard Mdluli.

Tokyo Sexwale and Jacob Zuma at an ANC meeting

Liesl Louw-Vaudran speaks to Gareth Newham, head of the Crime and Justice Programme of the ISS about Tokyo Sexwale as possible ANC presidential candidate and reforming South Africa’s electoral system.