The Limits of Prosecutions

There exists in Africa a general agreement about the need for accountability, but a divergence exists as to how this could be pursued. Some countries use criminal prosecutions to address the aftermath of mass violence. Others prefer non-punitive mechanisms, like truth commissions and amnesty, as alternatives to criminal prosecutions. Some countries use truth commissions in combination with criminal trials to address the aftermath of human rights violations. Most recently, traditional methods of conflict resolution feature prominently in the anti-impunity arsenal of some African countries. It appears, however, that the preferred mechanism adopted by the international community to address impunity is criminal prosecution. Currently, investigations and prosecutions of serious crimes are taking place in post-conflict African societies before the ad hoc international tribunals in Rwanda, the Special Court for Sierra Leone and the International Criminal Court at The Hague.

I concede that prosecuting perpetrators of human rights violations is definitively a viable mechanism for combating impunity. In appropriate cases, the criminal process can be deployed to engineer compliance with the law and to deter would-be perpetrators of human rights violations. In this essay, however, I argue that the objectives of using criminal prosecution to reestablish social equilibrium and promote reconciliation, though laudable and rhetorically inspiring, are simply unattainable. The hope that international criminal prosecutions will reconcile mutually distrustful ethnic groups with a long history of reciprocal antagonism is quaint, perhaps even naive. International criminal prosecutions launched in Africa amid much publicity and high expectations are on the verge of irrelevance. After more than ten years of international criminal prosecutions in Africa, it is becoming increasingly obvious that criminal prosecution is a weak reed on which to hoist the strategy of reestablishing social equilibrium and reconciling intergroup hostilities in post-conflict African societies. A confluence of systemic and environmental factors has whittled down the influence of international criminal prosecutions in Africa.

First, efforts to use criminal prosecution to modify behavior and contribute to social equilibrium rest on a failure to appreciate that causes of conflict in Africa cannot be resolved through the criminal process. The overarching goal of criminal prosecution is to apportion blame and punish the guilty. Criminal prosecutions are not designed to address or alleviate the underlying social problems that lead to and perpetuate violence. Violence may be more pronounced in some parts of Africa, but its causes remain mostly the same in virtually every African country: ethnic distrust, corruption, marginalization of ethnic groups and inequitable allocation of a nation’s resources. The frequency, resilience and indeed the incentive to resort to violence will shrink by addressing the underlying causes of violence. These problems cannot be addressed comprehensively through the prosecution of selected perpetrators of human rights violations. The underlying culture that sustains social disequilibrium must be counteracted if accountability is to take roots in Africa.

Second, criminal prosecution is a poor vehicle for restoring social equilibrium in increasingly fragmented societies where violence is viewed as a legitimate means to attain desired objectives. In a fledgling democracy fractured along ethnic lines with a history of mutual ethnic hostilities, international criminal prosecutions may end up becoming an impetus for, not a deterrent to, extra legal violent conduct. Some warlords have apocalyptic goals and readily resort to violence to mould the society according to their image. Faced with the threat of prosecution, and sensing their inability to negotiate with a determined world community, warlords with everything to lose may decide that it is in their best interest to fight till the end. Also, criminal trials can have adverse impacts on relationships. They can often involve accusations and counter accusations, rehashing of facts that rekindle old hostilities and reigniting passions that ultimately make reconciliation difficult.

Third, the causes of violence in Africa are considerably different from what leads to deviant behavior elsewhere, and are therefore more difficult to address via criminal trials. The dynamics of violence in Africa challenge the expectations of a Western-type criminal justice system and raise serious questions about the assumptions that undergird criminal prosecution. Violence in Africa is the product of a different phenomenon; Rwanda, Sudan and Sierra Leone result not from deviant behavior of citizens but from tensions at the armature of the society: ethnic distrust. Its dynamism is sustained by the belief that violence in defense of ethnic interests is a moral imperative, even a legal obligation. Decades of ethnic distrust and rivalries coupled with the central government’s inability to deal fairly with the ethnic groups provide further impetus for the apocalyptic dynamism of violence. The traditional criminal process fails to address the broad range of ways in which situational cultural pressures exacerbate violence. Violence created by underlying social problems and perpetrated by several citizens with varying degrees of culpability cannot be addressed by criminal prosecution designed to address individual misconduct, especially in cases where the causes of deviant conduct reside not at the individual level but at the communal level. Moreover, whether international criminal prosecution actually serves as deterrence is unclear because its effect cannot be empirically verified.

Fourth, the effectiveness of international criminal prosecutions depends on support both from the public and state governments. In Africa, public support has been low because of negative attitudes of African leaders towards the West shaped by historical circumstances, especially the adverse effects of colonialism. Public support continues to dwindle because of prevailing attitudes which view international criminal tribunals as agents and symptoms of imperialism, and as attempts by the West to reestablish influence over Africa. The effectiveness of international criminal prosecutions also depends on support from African governments which has been less than enthusiastic. African leaders are reluctant to support the prosecution of their benefactors, tribesmen or warlords who have the capacity to cause troubles for the fledgling government. Whether ad hoc or permanent, international criminal tribunals based on Western notions of justice, can do very little to reestablish social equilibrium and arrest the advancing decrepitude threatening to engulf Africa.

I acknowledge that international criminal prosecution can play significant roles in promoting accountability in Africa, so long as it is properly structured and undertaken with some sensitivity to the sentiments and feelings of Africans who live with the painful realities of violence. But, for all the above reasons, international criminal prosecutions have neither delivered on the promise of social equilibrium nor served as a chastening influence on impunity in Africa. Wholesale adoption of Western models of justice may not work in Africa given the prevailing social, political and cultural realities. Concerns for accountability offer no license for the international community to arrogate to itself the right to determine what is best for Africa. Imposing the preferences of the international community without due consultations with affected African nations will revive poignant painful memories of colonialism and reignite negative sentiments that will ultimately undermine efforts to promote accountability.

I urge all those involved in the fight against impunity in Africa to rethink the deeply flawed assumptions about the capacity of international law to bring about transformative changes in the conduct of citizen and group relations in Africa. Violence is so interwoven with the maladies in the continent – corruption, poverty, ethnic tensions – that it is doubtful that criminal prosecutions alone can serve as a chastening influence on the behavior of the leaders or the citizens trapped within the society. Building an effective strategy to reestablish social order in post-conflict African societies requires an understanding of the idiosyncratic environmental factors that animate violence, as well as recognition that criminal prosecutions cannot address the social pathologies that have disfigured Africa. It is these pathologies that will define and shape Africa’s future, not the legacy of criminal prosecutions.

It is my submission that a single-minded pursuit of criminal prosecutions as the panacea to impunity in Africa, regardless of the anguishing realities, carries the dangerous and unacceptably high risk of further deterioration, anarchy and bloodshed in Africa. It is important, therefore, to confect a strategy that can simultaneously promote accountability and address the social pathologies that undermine efforts to reestablish social equilibrium and reconciliation.

*Okechukwu Oko is a Professor of Law at the Southern University Law Center, Louisiana.

( For a PDF file of this essay, please click here)

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4 thoughts on “The Limits of Prosecutions

  1. Dear Professor Oko,

    Thanks for this very thoughtful and nuanced argument — remarkable in part because you were able to include subtleties with respect to the issue that are rare in relatively short pieces like this one.  As someone who has studied and worked in the area of international criminal law, and have also (and am currently) working in Africa, I find this contribution particularly helpful.  Like you, I think criminal prosecutions have a proper role in all parts of the world, but also like you I think prosecutions (and in fact law itself) is limited in how much it can do. I think people expect criminal trials and institutions like the ICC to solve the violence and injustices of a soceity, even the world. This is a disservice to those institutions. It is an unrealistic, and even dangerous, expectation — dangerous because it diverts our attention from also addressing the underlying causes of violence.  Your piece has taken me away, for a moment, with some of my work here in Kenya, and allowed me to reflect on some of these broader issues. Two additional inquiries that immediately come to mind. Rather than a west versus (east? non-west?) paradigm, is this instead (or also) an issue of domestic versus international justice?  In other words, a criminal trial of a single murder may be more effective than a criminal trial of a mass atrocity.  I am inclined to think not, but I am not so sure. Second, it would be useful to look at work (I assume it is out there somewhere) concerning the early days of criminal law in the west.  In Europe and the US there wee (and of course still are) ethnic tensions and (perhaps more so in the US) a penchant for resorting to violence when a perceived injustice is at issue. Was the justice system back then more nuanced, or was it also just a blunt instrument with all of the limitations that Professor Oko lists above? If the latter, did it nevertheless somehow “work?”  I confess that my knowledge of those early days of legal development is quite thin. I am sure there are people out there (perhaps even some who read this blog), who have such knowledge?

    Again, thanks for the thoughtful posting.

    Ron Slye

  2. A response to Oko – On African Exceptionalism

    Professor Oko’s contribution deserves a considered response. There are several points of refutation. I’ll stick with a few. First, Africa is not a detached piece of real state peopled by some pre-Neanderthals. All these suggestions about irremediable ethnic atavisms are not born out by reality or experience. The leaders or authors of some of the worst atrocities in our continent have not been some backwater provincials from an Alex Haley plot but are some of our most cosmopolitan in their formation, education and exposure.
    Related to this, second, the continent is not just an undifferentiated mass on an ethnic dartboard. Africa comprises 53 countries (54 if you add the Sahrawi). Every country is unique even if all countries within and beyond Africa share some commonalities. Africa is not the only continent that has different ethnicities. Few countries in the world are racially or ethnically pure. Somalia, one of the few countries in the world approaching ethnic purity, has been in chaos for two decades. It gives a lie to any suggestion that seeks to exceptionalise mass atrocities in Africa merely as the symptoms of “ethnic distrust” or “mutual ethnic hostilities”.
    Third, the assertion that “the causes of violence in Africa are considerably different from what leads to deviant behavior elsewhere” is clearly unfounded and unsupportable. To begin with, mass atrocity is not deviant behaviour – that’s like saying it’s like stealing candy from the corner shop or pawning my Mama’s jewellry without her knowledge or permission. That’s just wrong-headed. Mass atrocity is mass murder or rape on an industrial scale. The reason it happens is because people (can) get away with it, mostly because they control the state and can author it or are in a position to disable the state and its institutions. There is no African exception here. It’s the same thing all over the world.
    Fourth, it’s easy to suggest that mass atrocities in different African countries happen because of an ill-defined “social dis-equilibrium”. There is no society in the world that has social equilibrium – whatever that means. That’s why government and its institutions exist. Any violent tendencies from the lack of such equilibrium should, however, be sublimated or adddressed by functioning institutions. Total or partial failure or destruction of institutions is the biggest single explanation for mass atrocity. It results in impunity, making it more likely that vigilante action and cycles of reprisals will replace rational measures of governance and accountability. This happens because people are unable to receive protection from functioning institutions and thus seek it from their neighbourhoods where the framework of protection is identity rather than anonymity.
    Neither national nor international justice promises to rebuild communities. That’s not their brief. Justice mechanisms attempt to restore an appearance of symbolic institutional activity where most other things have been frustrated by those who ought to make them work.  
    The main reason international justice is struggling in different parts of Africa is not because people are afraid of long dead and buried colonialists. European colonialists left my country nearly one decade before I was born yet living conditions in my country have got worse not better over the succeeding decades. The idea that somehow, these long dead people should be responsible for the situation in my (or any African) country infantilises and patronises us all from Africa. As dreadful an enterprise as colonialism was, Africa does not have a monopoly of its adverse effects and we have to learn to hold our leaders squarely responsible when they kill our people rather than seek some bogey white man to blame. International criminal process currently has struggles on our continent to prove that it can catch the perpetrators, deal with them swiftly, disable them and do so with due care for the best interests of already traumatised victims and their communities. It still has to prove itself to a people sceptical about institutions of any sort that have repeatedly failed them.
    Moreover, the idea that “public support (for international justice) has been low because of negative attitudes of African leaders towards the West shaped by historical circumstances, especially the adverse effects of colonialism” does not make sense. The public and the leaders don’t have a commonality of interests. Few people expect the leaders under whose watch mass atrocities happen to support mechanisms to hold them accountable, whether national or international. The first victim of the NIF government in Sudan, long before it became the NCP, was the justice and accountability system, once highly resepcted around the world before the NIF went to work on dismantling it. It is no accident that mass atrocity followed. The level of public support for justice mechanisms has very little to do with colonialism. Which white man or woman have you caught killing anyone in Jos, El-Doret, Gulu or Darfur please? And who says ex- or wannabe colonialists implicated in mass atrocities in Africa are or should be beyond reach of accountability? But if we cannot countenance accountability for our own people, how can we ever be heard to say they should also face the music?

    Anyone who suggests accountability is not African or is dictated by some non-Africans has a burden to discharge. When hundreds of Africans were killed in the US Embassy bombings in Dar-Es-Salaam and Nairobi a few years ago, the governments of the affected countries hurriedly extradited the suspects overseas with no effort to even undertake a trial within their own countries for the crimes committed against their own people. In doing so, they appeared to suggest the lives of African don’t matter or in any case, count only in fractions that would glorify them. Those, by the way, were no crimes of ethnic African atavisms. Where was the bogey of colonial conspiracy then? Why is it colonialism only appears when accountability is sought against some domestic higher-ups for crimes that persecute all over again in their graves the bones of the brave heroes and heroines of our anti-colonial struggles?

    I should add that the attempt to dismiss criminal trials merely as “Western models of justice” is ahistorical on a scale that only the colonial-era judges in Southern Rhodesia and its line of jurisprudence erroneously attempted. Criminal proceedings have been part of the landscape of the structure of African customary law in both acephalous and chiefly societies long before the earliest ancestors of your average colonialst could read a map to find Africa on it. The criminal jurisdiction of chiefs in most African communities was ironically abrogated in most countries by colonialism.  
    No one suggests that the only solution to mass atrocities in Africa is contained in a yet unwritten holy book of prosecutions, national or international. That would be plainly silly. But any suggestion that it is possible to “reestablish social equilibrium and arrest the advancing decrepitude threatening to engulf Africa” merely by privileging “idiosyncratic environmental factors that animate violence” is worse than illusory. Credible accountability has to be a central part of the package. If African leaders will not provide it, victims will seek it wherever it exists. Bogeys of long dead colonialists will not preclude determined and frightened victims from doing so.
    Chidi Anselm Odinkalu

  3. Investigations and prosecutions of serious crimes are taking place in post-conflict African societies before the ad hoc international tribunals in Rwanda, the Special Court for Sierra Leone and the International Criminal Court at The Hague. This raises unrealistic, and even dangerous, expectations because it diverts our attention from also addressing the underlying causes of violence.

  4. Thanks for a good contribution there. there is nothing to add. The only thing that i think we need to know is the need for a mythological paradign when it comes to issues affecting Africa. why treating it like a baby that has just arrived from another continent. i feel Africa is misrepresanted when it comes to what it can do. we are a capable people and unique but equal to any kind of civilised society anyone can think of. so, this myopic and catastrophic view that seems to have been there since God knows when should stop if we are to be somewhere as a continent.

    thanks for constructive views that you have unveiled

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