I turn first to jurisprudential matters. Although international criminal law strives to borrow from and legitimate itself via a plurality of legal systems, the fact remains that its basic doctrines are Western in origin. This can cause problems when the jurisprudence has a poor sociological fit with the non-Western societies to which it is applied. Take for instance the doctrine of ‘superior responsibility’, one of the modes of liability under which international criminal suspects are commonly tried. Although the case law on superior responsibility is increasingly sophisticated, and the doctrine has been applied with sensitivity and intelligence by some judges, it remains the case that it evolved in the context of well-drilled Western-style bureaucratic and military organisations, in which it made sense to think that a superior could be held responsible for the actions of his subordinates, no matter how far physically removed (Knoops 2007).

In Africa, however, well-drilled hierarchies of this nature are a rarity. Over the past forty years many African governments, armies and guerilla movements have found it tremendously difficult to create stable organisations, and authority relations tend to be informal and fluid instead (for introductions to a vast literature see Chabal and Daloz 1999; Clapham 1985; Jackson and Rosberg 1982; Médard 1982; Migdal 1988; Murphy 2007). This was certainly the case in Sierra Leone, where authority in at least one of the fighting factions – the Civil Defence Forces – was based on patron-client or neo-patrimonial ties, and was more akin to a ‘militarised social movement’ than a conventional army (Hoffman 2007; Kelsall 2009).

While it is not impossible that superiors in such networks should have the ‘material ability to prevent or punish’ the crimes of their subordinates, as the superior responsibility doctrine demands, it is much less likely than in a Western context. Nevertheless, some international prosecutors have sought, rather unthinkingly, to gain convictions under this doctrine even when the evidence for it was flimsy. This, in my opinion, has led to a waste of time and resources and, in the worst cases, some highly questionable judicial decisions (Kelsall 2009, 71-104).

A related problem, although I lack space to address it here, is that the superior responsibility doctrine as currently conceived is ill-equipped to deal with the exercise of charismatic authority, which is rather more common in Africa than it is in the West (see for example Ellis 1995, 2001; Ellis and ter Haar 2004, 90-113). In Sierra Leone it played a part in the trial of Allieu Kondewa, alleged by the Prosecution to have authority over his subordinates by virtue of the ‘mystical powers’ he possessed, and it is arguable that it would also be significant were Joseph Kony ever brought to trial (Kelsall 2009, 105-145).

The next issue I would like to raise is procedural. Just as most of the jurisprudence used in international criminal trials is Western in origin, so is the procedure. Legal anthropologists have long pointed to the more informal and inquisitorial style of African customary courts as compared with Western ones, especially in adversarial, common law contexts (Gibbs 1963; Gluckman 1964). It is difficult for most of us to imagine how unnerving international trials must be for many African witnesses, who find themselves miles from home, in a courtroom of extraordinary grandeur, confronted with robed judges and lawyers who speak a foreign language, and who subject them to highly unusual communicative practices including frequently hostile cross-examination. It is no wonder that getting clear testimony in such circumstances has often proved difficult (Cryer 2007), a problem compounded in contexts, not uncommon in Africa, where secrecy is prized as a high social ideal, and in which there have developed a repertoire of dissembling rhetorical techniques (Ellis and ter Haar 2004, 70-89; Ferme 2001; Murphy 1980; Shaw 2000).

Things are made worse where local conceptions of space and time are at variance with Western coordinates, as they are in many rural African contexts, such as in Sierra Leone. Existing attempts to put witnesses at ease by concealing their identities, paying them allowances, and proofing them before testifying, create their own problems. In my analysis these communicative troubles, in addition to making trials, slow, laborious, and expensive, can seriously call into question the quality of the evidence on which judicial decisions are based (Kelsall 2009, 171-224).

Finally, I turn to normative issues. While some of the crimes adumbrated under the Rome Statute are doubtless regarded abhorrent by all but the most deviant sub-cultural groups or individuals, the same cannot be said for all of them. The issue here turns on the relation between the international ‘community’ that makes international law – comprised of activists, academics, statesmen and lawyers, at the pinnacle of which are the States Parties themselves – and the less cosmopolitan communities existing on their periphery. Take for instance the crime of enlisting children under a certain age (the age has varied over time) into an armed force. Anthropologists and historians have shown that the very conception of what it is to be a child varies cross-culturally, as do the expectations of what a ‘child’ can legitimately be expected or forced to do (Archard 1993; Boli-Bennett and Meyer 1978; Hoffman 2003; James and James 2005; Rosen 2007). Such appeared to be the case in rural Sierra Leone where, in the case of the Civil Defence Forces, commanders enlisted and communities volunteered young fighters, apparently not knowing that this was a morally or legally wrong act. By prosecuting individuals for this crime, the Special Court arguably held those concerned to an alien standard of justice of which they knew nothing, imposing international norms and law on people, raised in a different culture, with contrasting moral ideas. Rather similar points could be made in respect of the crime of ‘forced marriage’ (Kelsall 2009, 146-170, 243-254).

To conclude, at the same time as the States Parties reflect on some of ICJ’s recent achievements, they might also consider some of its difficulties, including those problems that are not prominent on the agenda but become apparent when we dig deep into international trials. These difficulties concern the appropriateness of international criminal jurisprudence, procedure, and norms to African and other non-Western contexts. Is it within the power of the States Parties to recommend a more sociologically attuned use of the existing jurisprudence? Can they, by addressing the entire ecology of the courtroom, make international criminal procedure as friendly and productive as possible for witnesses unfamiliar with a Western courtroom setting? And can they advise a more sensitive enforcement of those laws which, although regarded as universally abhorrent by the ‘international community’, have yet to penetrate the consciousness of communities on its fringe? In short, is a more genuinely international, multicultural type of justice attainable than the kind we have now?

REFERENCES

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———. 2001. Mystical weapons: some evidence from the Liberian war. Journal of Religion in Africa 31 (2):222-236.

Ellis, Stephen, and Gerrie ter Haar. 2004. Worlds of Power: Religious thought and political practice in Africa. London: Hurst.

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Jackson, Robert H., and Carl G. Rosberg. 1982. Personal Rule in Black Africa: Prince, autocrat, prophet, tyrant. Berkeley: University of California Press.

James, Allison, and Adrian James. 2005. Introduction: the politics of childhood – an overview. In The Politics of Childhood, edited by J. Goddard, S. McNamee, A. James and A. James. Basingstoke: Palgrave.

Johnson, Douglas H. 2009. Mamdani’s ‘settlers’, ‘natives’, and the War on Terror. African Affairs 108 (433):655-660.
Kelsall, Tim. 2009. Culture Under Cross-examination: International justice and the Special Court for Sierra Leone. Cambridge: Cambridge University Press.

Knoops, Geert-Jan Alexander. 2007. The transposition of superior responsibility onto guerilla warfare under the laws of the international criminal tribunals. International Criminal Law Review 7:505-529.

Mamdani, Mahmood. 2008. The new humanitarian order. The Nation, September 29.

Médard, J-F. 1982. The underdeveloped state in Tropical Africa: political clientelism or neo-patrimonialism. In Private Patronage and Public Power: Political clientelism in the modern state, edited by C. Clapham. London: Pinter.

Migdal, Joel S. 1988. Strong Societies and Weak States: State-society relations and state capabilities in the Third World. Princeton NJ: Princeton University Press.

Murphy, William P. 1980. Secret knowledge as property and power in Kpelle society: elders versus youth. Africa 50 (2):193-207.

———. 2007. The powerful presence of the past: historical dimensions of integration and conflict in the Upper Guinea Coast. Conference paper. Max Plancke Institute for Social Anthropology, Halle/Saale, Germany.

Otim, Michael, and Marieke Wierde. 2008. Justice at Juba: international obligations and local demands in Northern Uganda. In Courting Conflict? Justice, peace and the ICC in Africa, edited by N. Waddell and P. Clark. London: The Royal African Society.

Rosen, David. 2007. Child soldiers, international humanitarian law, and the globalization of childhood. American Anthropologist 109 (2):296-306.

Shaw, Rosalind. 2000. “Tok Af, Lef Af”: a political economy of Temne techniques of secrecy and self. In African Philosophy as Cultural Inquiry, edited by I. Karp and D. A. Masolo. Bloomington: IA.

* Tim Kelsall has taught politics at the Universities of Oxford and Newcastle, is a former editor of the journal African Affairs, and is the author of Culture Under Cross-Examination: International Justice and the Special Court for Sierra Leone (Cambridge University Press, 2009) (http://www.cambridge.org/9780521767781). He is currently living in Phnom Penh, Cambodia, working freelance as an Associate of the Africa, Power and Politics Programme (http://www.institutions-africa.org/) and as a Visiting Fellow of the War Crimes Studies Center, University of California at Berkeley (http://socrates.berkeley.edu/~warcrime/).

When a Kenyan Cabinet minister suggested in early 2007 that perpetrators of corruption be pardoned if they confessed their guilt and returned the spoils, there was surprisingly little public reaction. This was perhaps taken with a pinch of salt given that Kenyan politicians are good at talking but then doing nothing. But when former anti-corruption chief John Githongo (accused by some of behaving like a drama queen and self-appointed high priest), made a similar statement in mid August 2008, his view made headlines that drew sharp reactions. One opinion piece employed the headline, “Kenya to become a Looters’ Paradise.” Githongo, who fled to Britain in 2005, claiming he feared for his life after accusing senior members of President Mwai Kibaki’s government of massive looting, had observed that past inquiries to establish culpability in Kenya had not only delayed justice but often made accountability much more difficult. As the government’s permanent secretary for ethics and governance, he exposed the notorious Anglo-Leasing scandal, which involved state contracts worth more than $1bn being secretly awarded to phantom firms. The exposure forced the resignation from Cabinet of several ministers closely associated with President Kibaki, including Chris Murungaru, David Mwiraria and Kiraitu Murungi, although the last two were later reinstated, after inquiries failed to find them guilty. Interestingly, Githongo’s amnesty call received support from the then Justice and Constitutional Affairs Minister, Martha Karua, who observed that granting amnesty was the only sure way for the government to win the war against corruption. Karua promised to have the Cabinet approve laws to grant amnesty in exchange for the stolen wealth. Previously considered a member of Kibaki’s inner circle, Karua resigned in April 2009, before the amnesty law could see the light of the day, citing frustrations in discharging her duties. The question that emerges is: what are the prospects for corruption prosecutions in Kenya? This paper argues that while corruption is one of the most significant contributors to structural inequalities, extreme levels of poverty, and the decayed state of Kenya’s economy, there are a number legal and political constraints that make prosecutions unproductive. Instead, the country should consider using conditional amnesty to recover the stolen property and public funds.

In the course of debates on the amnesty-for-economic crimes proposal, members of civil society accused those behind the call of disingenuity and being motivated by vested political interests. Mwalimu Mati of Mars Group Kenya, an anti-corruption pressure organisation, opposed the proposal, arguing that the Kenyan government had consulted no one about abandoning its duty to investigate and prosecute crimes of corruption. He maintained that by supporting Githongo’s proposal, the government was acting as if “Kenyans had nothing to do with decisions on their own resources which were stolen from them.” Mati argued that the amnesty provision would give economic criminals and looters of public funds “a get-out-of-jail-free card while hungry chicken thieves continue to be automatically sent to jail to pay for their petty crimes”. Writing in the Business Daily newspaper, Jim Onyango likewise observed that the plan to offer amnesty to the architects of past corruption could wipe out the taxpayers’ hopes of recovering more than KSh200 billion (about 2,909,937,160 USD) lost to plunderers in the past two decades. Githongo’s suggestion was also dismissed by another columnist as laughable: “If I steal a mobile phone but could be let off the hook if I make restitution, then we make a mockery of the judicial system. Theft has to be punished no matter what.”

While prosecuting perpetrators of past economic crimes remains appealing to the majority of Kenyans, several past and present factors pose monumental challenges to this strategy. Many of the cases involving influential individuals have often ended up in acquittals due to technicalities or insufficient evidence, as evidence is normally destroyed or corrupted beforehand. Indeed many past cases of grand corruption in Kenya remain unresolved, with little to show from the myriad of government anti-corruption initiatives. This is certainly not a problem unique to Kenya: in most developing countries with weak institutions, attempts to use the judiciary and ordinary criminal law to fight large-scale corruption have often failed due to procedural technicalities employed by defence lawyers, lethargic prosecutions, and ingratiating judicial systems.

In Kenya, the problem is illustrated by one of the Commissions of Inquiry set up by the Kibaki administration to investigate the ‘Goldenberg scandal’, a case in which the Moi government lost billions of Kenyan shillings through compensation for faked export of gold. The Commission’s inquiry was held in public, and uncovered the intricate web surrounding the looting of public funds from the Central Bank of Kenya. However, in the report, Commission Chairman Justice Samuel Bosire observed that while massive sums of money had been siphoned out of the country by the Goldenberg scheme, the Commission was unable to trace it.

In 2003, the Kenyan government sought recourse to asset-tracing and recovery of looted funds and spent well over Ksh 20m (approximately 273, 973 USD) to track the stolen billions in foreign accounts, with little success. Apparently, those who stashed this money in offshore accounts were not only able to hire the best defence lawyers around, but actually frustrated the tracking effort by using third parties to transfer the money to other accounts once they realised they were being followed. The difficulties in pursuing investigations were compounded by foreign banking laws, which in some cases impeded investigations. Albert Mumma, a lawyer, argues that assets allegedly acquired by means of corruption can only be confiscated in Kenya, once a myriad of legal processes has been followed, and that the state needs to prove beyond doubt that the cash or property concerned was obtained through graft. He adds, “This would take a long, long time to prove. He adds, “We would be sitting in court hearings for years.” In a similar vein, Patrick Kiage has argued that during Kibaki’s time in power, there has been no flood of cases dealing with the past economic crimes being filed in the Criminal Division because there is just “not enough time or resources to re-open files long-closed or open new ones in pursuit of trails long cold and dead.” To him, were the Kibaki’s Government to pursue many of the past economic crimes through criminal proceedings, the government “may long have been shunted out of power before the first batch of cases is complete.”  Indeed, it would be just as difficult to trace illegally acquired money deposited in Kenyan banks, as there is currently no law that supersedes the confidentiality clause binding these banks to their customers. In addition, legislation is required to define how to treat persons who unknowingly bought property from those who obtained it through graft, as this would certainly invite possible costly lawsuits.

So while members of the civil society continue to rightly accuse the Kenyan government of lacking political will and commitment to uproot graft in the country, there is also need to appreciate the inherent difficulties in pursuing the prosecutorial approach against perpetrators of economic crimes. While corruption has been endemic and even threatens to tear apart the entire country’s socio-economic and political fabric, there is a need for prudent and pragmatic measures that would promote both accountability and social reconstruction. Eventually, the overriding consideration should be to secure the stolen assets. This is where the amnesty suggestion can be meaningfully applied. A similar approach was adopted this April 2008 in Kazakstan, allowing those who wanted to come clean to put their money in special accounts, which would then not be subject to penalty or taxation. Kazakh officials said some 500 million USD was brought in while the law was in effect.

How can the provision of conditional amnesty in Kenya be meaningfully and creatively applied to recover stolen property or public funds and under what conditions? One suggestion would be to carry out detailed investigations in order to gather sufficient information about those past corrupt practices and, if possible, freeze the related accounts and assets. Subsequently, with a damaging dossier, it would be imperative to ask the suspected corrupt individual to voluntarily return the money and receive amnesty or be prosecuted. This way, corrupt individuals are more likely to cooperate. The amnesty provision can therefore be used as a leverage or credible threat to have individuals cooperate in the repatriation of stolen national assets. Those who fail to cooperate should then be threatened with prosecutions and such other measures like prohibition from holding of public office.

*Dr Kisiangani Emmanuel is a Senior Researcher at the Africa Programme of the Institute for Global Dialogue, South Africa. His areas of interest include Transitional Justice, Conflict Management and Peace Building, Political Governance and Diplomatic Discourse.

There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity.

People often ask: would Kenya have been a better place today if the “Bomas” draft had not been sabotaged? This essay argues that a good constitution, while critical, is not equivalent to constitutional order. Enactment of a constitution is distinct from the adherence to its values, institutions and procedures. A constitution by itself makes no difference. Kenyan society determines the extent to which the constitution will be observed, manipulated, or disregarded, and therefore the extent to which constitutional reforms will have meaning.

The notion of a constitutional order is broader than merely the text of the constitution. It represents a fundamental commitment to the principles and procedures of the constitution and therefore emphasises behaviour, practice, and internalisation of norms. A central feature is the depersonalisation of power. Power belongs to state offices, not to individuals, however exalted. The purpose for which power must be used and the mode of its exercise are set out in the law. The holders of even the highest state offices are subject to the law, not above it. This aspect of constitutionalism has proved extremely hard to realise in Africa—where public office has its own aura, and expectations of the people merely encourage the whimsical, or capricious and biased, exercise of state power.

Most elements of the framework of constitutionalism are unacceptable to those who gain access to state power, for they interfere with their primary objective of accumulation. This has been the essence of the Kenya experience. Constitutionalism has been rejected, and constitutionally sanctioned power has been exercised or abused in the name of ethnicity but in practice deployed for personal aggrandisement. The politics of the ‘Bomas’ process demonstrate this rejection of the values of the constitution: a professional phase where independent experts consulted with the people in accordance with national goals and prepared a draft constitution, and a deliberative and consensus-building phase with the representatives of the people, regions/communities, and civil society, were followed by a parliamentary phase where, against logic and democracy, politicians had a veto. It was illogical because all the Members of Parliament (MPs) were automatically members of Bomas where they had ample opportunities to have their say and to persuade others of the rightness of their positions. It was undemocratic because MPs could override a decision of a much larger, and more democratic and legitimate body than Parliament. While the ‘Bomas’ process afforded Kenyans for the first time ever the chance to decide on the values and rules by which they wished to govern themselves, politicians held a narrow interest in the constitution, focusing on access to state power, and their own personal prospects of securing that access. During the Bomas, most politicians, including ministers, about half of whom barely ever entered Bomas, showed little interest in human rights and social policies, including environmental and land policies. But they were passionately opposed to popular participation in and controls over the exercise of state power. They had little time for fair administration and public accountability of state officials.

As the analysis in the Waki Report on Post Election Violence in Kenya so vividly demonstrates, the process of accumulation cannot easily be secured within the parameters of a democratic constitution through mechanisms and procedures for accountability. Indeed the point that emerges with sharp and sad clarity is that it is only by constant and systemic violations of the constitution and the law that this political class is able to accumulate and establish its control over society—and its opponents. The horrendous consequences of these violations are graphically described in the Waki Report: corruption, institutionalisation of violence, the extensive use of militias, and the loss of the state monopoly of force (with weaknesses and divisions in state security forces). In particular the Report emphasises the role and prevalence of violence in Kenyan politics and society. It attributes many failings of the state to the personalisation of power in the president (and with it the absence of the separation of powers). The economy has become closely intertwined with state patronage and ethnic politics, and leads businesspeople to become architects of violence, and to collude in other violations of the law. There is little accountability for the exercise of public power. Impunity for the friends of the regime and for compliant state officials is rampant—and indulged despite public outcry. All these demonstrate the absence of the rule of law. The way successive presidents have misgoverned Kenya is proof that these violations are in fact the norm.

Serious consequences follow from this, not least the loss of state legitimacy. The state is not perceived as a social and political force for the common good. It is regarded, accurately, as partisan, throwing its weight behind specific communities and interests. The subordination of the electoral commission, the police, and the judiciary to the executive has resulted in their inability to resolve national problems, though this is why they are set up, with independent powers. The police are particularly singled out by the Waki Commission for their failure to ensure Kenyans’ security, and consequently are held responsible for numerous murders, rapes, and the displacement of the people. They are no longer able or willing to protect the people against violence and plunder by private and politically sponsored militias. The judiciary is so discredited that no one believed that it was capable of impartial adjudication of election disputes. The Waki Commission doubts the veracity of the statements of the attorney general about his attempts to enforce the law. The Waki Commission concludes, “Over time, this deliberate use of violence by politicians to obtain power since the early 1990s, plus the decision not to punish perpetrators, has led to a culture of impunity and a constant escalation of violence”. The government and politicians have not only sanctioned violence, but they have also ethnicised politics and violence. Consequently the state has failed to perform functions intimately connected with the exercise of public power, indeed major reasons why we establish a state in the first place.

Despite the emphasis placed on constitutional reform by Kofi Annan, other eminent Africans, Kenyans and the international community, there is no guarantee that many of the reforms proposed by them and the Kriegler and Waki Commissions will help to get Kenya out of the hole in which successive regimes have placed it. I have said enough to indicate how vested interests, among politicians, businesspeople, and the bureaucracy will sabotage reforms (as they have done ever since Kenya’s independence). Despite the ravages wreaked upon the state, it still remains the primary means to accumulate wealth and power—and those who are in control of it will fight to maintain their control, regardless of the rules of the constitution.

It is hard to provide the answer to this dilemma, that the very sponsors of reform are its principal saboteurs. What we know is that constitutionalism cannot be willed; it must be established by deep commitment and sustained activity. The constitution cannot achieve anything by itself: like Marx’s commodities, it does not have arms and legs. It must be mobilized, acted upon, used, etc. This idea is also expressed by Granville Austin (2000), in his monumental study of the working and impact of the Indian Constitution, in which he says that a constitution, however living, is ‘inert’. A constitution does not work, it is worked. He says his book is ‘about those who acted upon the Constitution, how and why they did so, and about those the Constitution acted upon, or neglected. It is about Indians working their Constitution…’

One way to understand the potential of a constitution to impose its imprint on state and society is to examine two key factors. One is internal to the constitution, and the other, external (society). The internal concerns the ways in which the constitution distributes power, the institutions it sets up for different tasks, modes of accountability, and methods for the enforcement of the constitution, including respect for and protection of human rights. The balances within the constitution can do something to guide state institutions and empower the people. It is safe to say that constitutions may succeed in setting up institutions and giving them authority, but they often fail in the fulfilment of national values or directive principles—for the paradoxical reason that those who accede to these institutions may have little commitment to the values. It is interesting to note in this context that at Bomas, politicians paid almost no attention to values, but were obsessed about institutions—knowing well that if they got hold of institutions, they would be able to ignore values. As we know, most African constitutions contain excellent values and procedures, but, for the most part, they have failed to produce excellent states. In Kenya, even the essential pre-conditions of a constitutional state are missing: an independent judiciary, honest electoral commissioners, absence of impunity, policies that are inclusive, the rule of law—and most importantly, ethical and moral standards in public life. These difficulties are compounded by many unresolved historical injustices.

They have failed in substantial part because of the second factor, which is external to the constitution, namely society. The constitution operates within society and seeks to influence its development. The distinguished Indian sociologist, Andre Beteille, believes that a constitution can provide directions for the national development and self-realization, but whether, and the pace at which, the development takes place depends on society. The constitution may set out guidelines for the exercise of power and the aspirations that the state must fulfil. But society also affects the constitution, sometimes pushing policymakers to uphold the principles enshrined in the constitution and sometimes negating those principles. I have already indicated that in Africa we have placed unjustified reliance on the capacity of the constitution to influence society. I have also indicated that the political order intended to be set up by the constitution competes with other models and realities—and in the end it is society that determines the extent to which the constitution will be observed, manipulated, or disregarded.

The African constitution not only fails to mould civic values or the behaviour of key political actors, it also fails to generate a state that is capable of sound social policies and fair and honest administration. Andre Beteille’s brilliant insight needs to be supplemented by a consideration of the obstacles to progress placed by the inherited, pre-constitution bias of the state apparatus. Perhaps inadequate attention has been paid to these obstacles, as opposed to societal obstacles, because it is assumed that the constitution, par excellence, designs and structures the state. However, as I have mentioned above, it may structure institutions, but may fail to infuse them with values and principles. The constitution tends to structure macro institutions but often says little about values and procedures of the administration of the state (which may persist from one constitution to another).

The implication of this is that political reform has to go beyond the constitution. It is one thing to make a constitution. It is quite another to breathe life into it, making it a living, vibrant document which affects, and hopefully improves, the reality of people’s lives. A living constitution is one that citizens use in their daily existence, that governs and controls the exercise of state power, and promotes the values and aspirations expressed in it.

For these reasons, implementing a constitution is not about this or that provision, or even the totality of the constitution, important as these are. It is about the inculcation of a culture of respect for and discipline of the law, acceptance of rulings by the courts and other bodies authorised to interpret the law, giving effect to judicial decisions, acceptance of the limits on the government, respecting and promoting human and collective rights, the participation and empowerment of the people. Ultimately the people have to be guardians of the constitution.

Professor Emeritus Yash Ghai chaired both the Constitution of Kenya Review Commission and the Kenya National Constitutional Conference (“Bomas”). His areas of research and publication include public law, ethnic relations, autonomy and federalism, human rights, comparative constitutions, and sociology of law. He has taught at the Law Faculty of a range of universities including the University of Hong Kong University and Uppsala University, and been a visiting scholar in Harvard and Yale.

In 2005-2008, Prof. Ghai was the Special Representative of the UN Secretary General for human rights in Cambodia.

Judges deal in fear, pain and death. However exercised, judicial power has a tremendous impact on the socio-economic, political and cultural systems of a nation. Kenyan masses remain alienated not merely by the foreign language and condescending demeanor of courtrooms but also the centralization of justice. Consequently, we must ask: is the quality of justice determined by the performance of an incumbent occupant of a judicial position? If so, who should appoint judges? What is to be done when the actions of a politically partisan Chief Justice cow an entire judiciary to bow to executive whims?

These questions have come to focus among the Kenyan legal fraternity following recent appointments of High Court Judges in April 2009: Joseph Nyamu and Alnashir Visram gained appellate status; Chief Magistrates Aggrey Muchelule and Maureen Odero and Senior Principal Magistrate Florence Muchemi became judges; as did Abida Ali-Aroni, former chair of the Constitutional Review Commission, and Said Chitembwe, Cooperation Secretary of The National Social Security Fund. Rife speculation and intense lobbying ensuing among prospective candidates re-opens the old debate regarding deficiencies afflicting the appointment process. As legal power is derivative of judicial power, the Law Society of Kenya (LSK) at its 2009 Annual General Meeting passed three resolutions. First, the LSK proposed the establishment of transparent criteria to guide the Judicial Service Commission (JSC) in its recommendations of suitably qualified individuals. Second, the LSK resolved to recompose the JSC so as to include two of its own members. Third, members mandated their Council to petition President Kibaki to convene a tribunal to inquire into the conduct of the Honourable Chief Justice Evans Gicheru whom they consider unfit to hold that lofty office. Such radical stance is predicated on the grounds that the Chief Justice is perceived to have directly compromised the independence of the bench by centralizing justice and by swiftly swearing-in President Kibaki for a second term, thereby precipitating the degeneration of widespread post-election violence.

In justification of LSK’s first resolution, the common law training and JSC’s confidential appointment criteria lends loyalty to the President as appointing authority and should be reformed. Repeal of jury-trials in 1967 and gradual replacement of lay magistrates both Africanized and professionalized the judiciary. The constitutional qualification of appointing judges with at least 7 years of legal practice effectively standardized the culture of appointees to persons assimilated into middle-class values who are not only well-connected among lawyers but also politically and ethnically representative. Recently, a Ministry of Justice task force suggested that the minimum qualifications be raised to advocates of 10 and 15 years standing for high court and appellate judgeship respectively. No mention was made to institutionalize gender-parity, ethnic or religious balance considerations reflected in recent appointments. Given Kenya’s volatile post conflict heterogeneous society, there is clear need for broad political and ideological diversity. To secure the appearance of justice, it is not sufficient to merely resolve disputes objectively, according to primary rules prescribed in advance. Our constitution must also ensure that laws are democratically made. John Rawls’ justice as fairness therefore encompasses tolerating subjective values which condition experiences perceived by the most vulnerable social classes. Significantly, the Kenyan struggle for independence from colonial rule was waged partly to remove a sense of injustice emanating from the appearance of a discriminatory judicial system which restricted Supreme Court access to minority Whites only. One alternative would be to take the path of the US and elect judges; however, such a process promotes political acumen over constitutional interpretation. A middle ground could work in Kenya; requiring parliamentary vetting of proposed nominees.

In answer to LSK’s second resolution, criminologist Clive Walker would argue that the vital role of judiciaries is to guard against majoritarianism and its crude impact on individual rights and unpopular minorities. Human rights violations are primarily caused by the criminal justice machinery. Adjusting public perceptions of the JSC currently constituted by the Chief Justice, an Appellate Judge, the Attorney General, the head of the Public Service Commission and a High Court Judge, may restore public confidence in our courts. Reconstitution of the JSC may widen the pool from which potential judges are selected so as to include liberal judges.

The LSK’s third resolution aims to dislodge Chief Justice Gicheru ostensibly partly for rendering opposition candidate Raila Odinga’s genuine post-2007 election complaint, fait accompli which ultimately contributed to over 1000 deaths and the forcible displacement of 350, 000 people. Further complaints against the Chief Justice include the fact that in early 2007, he directed that all cases lodged to question administrative action, be heard exclusively in Nairobi, requiring all up-country litigants had to travel to the capital city and engage expensive lawyers. This is unconstitutional. Obviously, every judge has equal powers to hear any dispute. In February 2009, following a two year stand-off, the Chief Justice suddenly but sullenly reversed his irrational decree thus re-diverting judicial review cases to their original locations. Yet much damage was already done. He has inflicted irreparable hardship on up-country litigants who were alienated from obtaining prerogative orders during the post-election violence. Further, the Chief Justice declined to allocate any judge to listen to the LSK’s application challenging his illegal centralization order. Instead, policemen tear-gassed protesting lawyers inside Nakuru courts. In retaliation, Mombasa practitioners boycotted pro bono services traditionally rendered in capital murder cases. Yet in reality, even LSK’s three resolutions preferring incremental “quality control” through apparent piecemeal constitutional amendments preceding the awaited real maximalist overhaul, are conservative. Such interim reforms represent well-intentioned attempts to circumvent anticipated political obstacles presented by contentious comprehensive constitutional review issues.

While the Chief Justice may not be personally responsible for the reality of corruption and bribery in our courts at individual magisterial or para-legal levels, his leadership personifies the appearance of the judicial institution as a whole, yet he publicly dismissed the new Grand Coalition Government’s plan to compel judges to sign performance contracts, as unconstitutional. Nonetheless, members of his Kikuyu ethnic group within the LSK published a double page advertisement in the Daily Nation seeking signatures defending the Chief Justice’s security of tenure. His track record? Since appointment to the bench in 1982 Justice Gicheru has delivered one memorable judgment. His dissenting ruling in the 1994 case of Republic v The Post on Sunday where to this credit, out of seven appellate judges he disagreed with the government’s attempts to silence a publisher through contempt of court. That case ironically involved an editor, Tony Gachoka’s, allegations that the then CJ, Zacheus Chesoni, received a Kshs. 30 million bribe from Goldenberg Scandal architect Kamlesh Pattni. An unfortunate precedent was subsequently set by the Kibaki administration in 2003 which forced the resignation of Gicheru’s predecessor Chief Justice Bernard Chunga for his association with the infamous Nyayo House torture chambers during his reign as the Director of Public Prosecutions. Gicheru subsequently appointed an ad hoc Committee into Judicial Corruption chaired by Judge Ringera to conduct a purge. In October 2003, 18 High Court and 5 Appellate Judges, 82 magistrates and 142 subordinates resigned upon being publicly named and shamed in the Report. Following this “radical surgery,” Ringera’s majority decision in the Njoya case deflated the Bomas Draft constitution which threatened devolution of Kibaki’s power. Worse still, on the eve of the 2005 national constitutional referendum, the Referendum case instead validated the executive-driven “Wako Draft New Proposed Constitution.”

The failure of the judiciary to cope with election petitions has led former UN Secretary-General Kofi Annan to act as our receiver-manager. Former Justice and Constitutional Affairs Minister Honourable Martha Karua, in a scathing attack on the judicial corruption conceded that appointments are predicated on favouritism, cronyism and incompetence. Upon her swift rebuff by the President’s mysterious appointment of 7 new judges recommended by a conservative JSC, she resigned in a huff. The president unceremoniously trashed all three LSK resolutions. Now, a Truth, Justice and Reconciliation Commission has been established to supplement the failed judiciary, alongside a range of other prosecutorial arrangements. The legal profession should urgently provide a lead not only on how to deal with real intransigent institutions and apparent individual impunity so as to inspire accountability and personal responsibility in the attitudes of incumbents but also to infuse real transparency into our structures.

Charles Khamala is an advocate of the High Court of Kenya, and has been a practicing lawyer since 1994. His research interests include international criminal law, human rights, criminology and jurisprudence. He is currently a Ph.D. Candidate at the University of Pau (Private Law).

We welcome links to this article and comments. Reproduction or redistribution of the above text requires the prior consent of the original source. Please contact lydiah-kemunto.bosire@politics.ox.ac.uk

This article is part of a debate organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please go to www.csls.ox.ac.uk/otjr.php.

Nineteen months have passed since Kenya’s contested 2007 election, when the rapid re-inauguration of President Mwai Kibaki heralded an outburst of post-election violence – characterised by targeted attacks on ethnic ‘others’, an overzealous state security response, and retaliatory attacks on ‘aggressor’ communities – which left over 1,000 people dead and more than 350,000 displaced. The violence ended in February 2008, when a coalition government was formed, but ‘deep peace’ remains elusive and reforms unlikely. What is left is only rhetoric differentiating this administration from post-Mau Mau amnesia and investigative committees without reforms, as after the ‘ethnic clashes’ of 1991-1993.

Bloated, divided, racked by corruption scandals and lacking a clear policy agenda, the coalition’s response to the immediate humanitarian crisis was inadequate. IDPs were moved to unmanned ‘satellite camps’ without concerted efforts to reconcile them with former neighbours, amid threats of violence and corrupt distribution of a paltry KSHS 10,000 ‘compensation’.

The government has responded to underlying causes by establishing four commissions: an Independent Review Commission to examine the electoral process (Kriegler Commission); a Commission of Inquiry into Post-Election Violence (Waki Commission); a Constitutional Review Commission (CRC); and Truth, Justice and Reconciliation Commission (TJRC).

In theory, such inquiries can play an important role, providing a public account and acknowledgement of the past, which may be cathartic and provide some solace. Thus, the Waki Commission has been commended for its criticism of state security services and politicians, and attention to underlying issues of impunity, poverty, underemployment and the ‘land issue’. Much more importantly, commissions can make recommendations – yet, while Kenya has held many commissions, successive governments have usually failed to introduce any suggested reforms. Unfortunately, this record continues. The most notable absence is of a Special Tribunal – recommended by the Waki Commission to investigate 10 individuals who may have incited, organised and/or financed the violence – with the threat that the ‘list’ would go to the International Criminal Court (ICC). However, in June 2009 the government agreed to a tribunal by July 2010, which renders any high-level prosecutions prior to the 2012 election campaigns extremely unlikely, while few citizens or police officers have been charged or even investigated.

Unfortunately, the CRC seems set to suffer a similar fate to its predecessor; especially its continued unwillingness to address why Kenyans are divided on certain issues, such as the benefits, dangers and meaning of devolution. Consequently, there is heavy reliance on the TJRC to solve underlying issues. However, the TJRC suffers from a paucity of resources and a massive mandate, which includes the need to establish an accurate, complete and historical record of violations of human and economic rights inflicted by the state between December 1963 and February 2008, a picture of possible causes, and investigate corruption and irregular acquisitions of land. The danger is thus that the TJRC will add little to the ‘truths’ established by earlier commissions, while their collective recommendations are delayed until after the next election or indefinitely. Added to this is a deteriorating security situation – with the police and military increasingly acting as a law unto themselves and spread of the mungiki model of gang crime and terror – while politicians seem blissfully unaware of seething resentments or, more likely, believe that they can use them to their own advantage.

The unfortunate consequence is that violence, while far from inevitable, seems increasingly likely. At the heart of the problem lies a corrupt and tarnished political system characterised by an ‘ethnic logic’ of political mobilisation and support. To understand local potential for violence one must recognise the interplay between: a highly centralised system in which real power lies with the Office of the President; a lack of faith in key institutions (such as the anti-corruption and electoral commissions, parliament, judiciary and security services); a perception that the post-colonial state is (and has been) ethnically biased; communal discourses of past injustice and marginalisation regarding ‘lost lands’ and political patronage; pressure on elites to present and further ethnic claims; the use of inflammatory and chauvinistic or defensive ethnic language by political candidates and local opinion formers; the use of violence as a political and economic strategy; a culture of impunity for corruption, ethnic incitement and organisation of violence; the subsequent normalisation of violence; and finally, but not least, high levels of poverty, inequality, and un (and under) employment especially among the youth.

Given this litany of interwoven factors and long-standing issues it is clear that far-reaching reforms are required. The most important of these are:

1) Institutional and constitutional reforms to reduce presidential powers and increase faith in key institutions. The colonial administration bequeathed a highly centralised system, which respective presidents have used in the name of unity and development. This has encouraged an obsession with personalities as the problem and potential salvation, and created a zero-sum game with all eyes on the presidency.

2) The government needs to end the culture of impunity for participation in violence by police and citizens, and the use of violence as a political strategy. Despite evidence that KANU politicians incited, organised and financed ‘ethnic clashes’ in the early 1990s, no investigations took place. This history has encouraged a normalisation of violence, such that it is increasingly part of political and socio-economic strategies, and has spiralled out of control – as the growth of ethnic militias (such as mungiki) prompts an increasingly violent state security response, and yet more militia activity.

3) Finally, the government must look beyond economic growth to realities of poverty and inequality along with perceptions of state bias and historical injustice. This requires much more than donor rhetoric of ‘poverty reduction’ and praise for impressive growth rates without noticeable trickle-down, but also a deep understanding of the link between perceptions of past and present injustice and the politicisation of ethnicity and the ethnicisation of politics. At present, there is a tendency to explain African politics by a simple ‘politics of patronage’, or the notion that politicians use ethnicity to mobilise support and reward supporters with state largesse. While important, this narrative ignores bottom-up pressures and the broader base of political accountability, and encourages a simplistic dichotomy between ‘bad’ politicians and ‘good’ citizens. More specifically, this approach ignores ways in which narratives of ‘shared pasts’ – of displacement, injustice, marginalisation and/or achievement – provide people with a means to lay claims to ownership and control of space, and rights to assistance. Too often ignored, this dynamic produces a complex political terrain in which politicians use ethnicity to mobilise support, and ordinary citizens use communal discourses to further claims to rights and resources.

To tackle all of these areas in a coherent and aggressive manner is clearly no small task, especially given the unwieldy coalition government, the worldwide recession, and competing claims to resources and representation. Nevertheless, the urgency for reform renders the government’s lacklustre performance in all these areas a source of considerable concern, as failing to deal with underlying problems and new layers of grievance raises numerous reasons to worry about future electoral cycles.

*Dr. Gabrielle Lynch is a Lecturer in Africa and the Politics of Development in the School of Politics and International Studies, University of Leeds, and has been conducting research on politics and ethnicity in Kenya since 2003.

The above article is available as a PDF

The outline of the political story of all this is well enough known, but the exploration here of the struggles over the judiciary has never been written up in this very personal and penetrating manner, and we are all indebted to Abdullahi for it. It is also very revealing of the significance of judicial affairs in Sudan.

There has been a tendency in debates about African politics to write off, if not to ignore, issues pertaining to the judiciary but this book reminds us of just how inappropriate that would be in Sudan’s case where the struggles have been so significant and so intense. The struggle of course is ongoing, and may prove the formal aspect of the division of the country, since the CAP is built around the south’s rejection of sharia law. But even before we get to the referendum in the south of 2011 which will decide the issue, there are more matters to be attended to such as the press laws and other liberties which will be central to the conduct of the elections now scheduled for 2010. And beyond that, for the one or two states, it will be necessary to look to the institutionalisation of a stable legal system or systems if struggles such as those depicted here are not to be a continuing feature.

Few have written in detail about the key institution of the Sudan Judiciary, its corps of professional judges, its management of the courts whose role has been the implementation of the laws of Sudan, whether colonial, post-independence, or Islamist.

The most critical works, appropriately in my view, have been written by Sudanese, for example, Abdullahi al-Na`im, Francis Deng– both trained in the law who have added human rights and diplomacy to their legal writings– Mohamed Mahmoud, Mahgoub al-Tigani, and Abdullahi Gallab, each of whom who lived through the tumultuous years of legal change and have, as scholars in the Diaspora, reflected and commented upon the political and social transformation that has occurred in and around the legal institutional change. And now comes to this distinguished group Abdullahi Ibrahim whose Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898-1985 offers details of the inner workings of the Judiciary and a unique critical perspective on the years of post-independence Sudan and its march toward Islamization under Nimerie and state Islamism under Turabi-al-Bashir. Works by various non-Sudanese have sought to create objective historical chronicles of the law, such as Layish and Warburg’s work The Reinstatement of Islamic Law in Sudan under Numeiri (2002) that refers to the Islamist legal project– from 1983 through the al-Bashir-Turabi “Salvation” regime– as a “legal experiment.” My early work, Islamic Law and Society in the Sudan (1987; Arabic edition 2004) combined the study of Shari`a as it was on the eve of the September laws, with an ethnographic account of the law in practice. Soon to come is the result of my recent research on Shari`a after the CPA, Shari`a and Islamism in Sudan: War, Peace and Social Transformation. These all have their place, but Abdullahi’s book is something new, an engaged work on a seemingly dull subject, full of passion, respect, and fresh perspectives.

Manichaean Delirium is a unique blend of history and political commentary centered upon the neglected study of the Sudan Judiciary. Often the judges themselves are overlooked as a subject of study, and they are, indeed, a variegated professional group as the book demonstrates. Past presentations by Abdullahi at our Sudan Studies Association conferences presaged the complex view of this professional class he presents, combining a respect for their struggles with the dilemmas he so aptly identifies as “Manichaean. In these papers Abdullahi and in this book, he combines dramatic and artistic metaphors with his analysis of qadis (working in Shari`a courts) and judges (in Civil courts). Their dichotomous opposition and ranking is rooted in the colonial experience that sought to undermine Islamic institutions, but was fearful of eradicating them with the experience of Mahdism fresh in their minds. The earlier papers, with titles such as “Colonialism as Exorcism: A Tale of Two Courts”; “Sudan Shari`a Judges: the Pride of Turbans” and “Popular Islam: the Religion of the Barbarous Throng” are reworked into equally provocative book chapters: “Nimerie’s Instant Justice: Tongue of God and the Rogue” and “The Qadis and Mahmoud M. Taha: Toward an economy of Vendetta and Martyrdom” are just two examples.

Abdullahi offers a new theory for Nimerie’s September laws and courts of ‘prompt justice.’ He argues that Nimerie had run out of ideologies and, thus, jumped on the bandwagon of populist demands for justice. I would differ with his interpretation that the Shari`a was accepted as a better, cheaper deliverer of justice to the masses, comparable to the popularity of the Islamic Courts movement in recent years in Somalia. Sudan’s fundamental crisis in 1983 was the resumption of war in the South, months before the September laws were announced. The target was more likely the rebellious Southerners and their potential Northern allies. Making Shari`a law effectively state law flushed them out, sent the message of the pre-eminence of the Islamic state, and restarted the civil war which the generals still believed was militarily winnable. The author supports this view later in his work when he acknowledges that Nimieri’s Islamizing the state was an instrument to terrorize the population into political submission. Personally having conducted research in the Khartoum courts in the years prior to the 1983 laws, I detected neither mass sentiment for or against the moves to Islamize the law. The first moves toward Islamizing the law, with initiatives regarding mandatory zakat and prohibitions on alcohol, took place from 1977 and were mostly unopposed. However, the qadis in the Judiciary were very pleased, and viewed the trend toward Islamization as a major opportunity (“forsa kabeera” I heard time and again).

Thus, this work on Sudan’s law and its legal professionals is respectful, yet also critical of the Islamist project that has done so much harm to the independence of the Sudan Judiciary. Generally by separating the political from the professional, he affords the judges their due respect for having survived political events while trying to retain standards of impartiality despite intense pressure from above. Neglected in this respect is sufficient mention of the judges who were perceived as somehow disloyal or disrespectful of the Islamist project and were dismissed in their droves particularly in the early years of the al-Bashir “Inqaz” government. Notably, in this respect Abdullah (a vocal supporter of the women judges who have been appointed over the years) missed an opportunity to set the record straight that these female judges retained their positions in the Judiciary despite international human rights reports to the contrary.

The chapter on the trials of Mahmoud Taha (1967 and 1985) will likely be the most controversial, especially to his followers in the Republican movement. The question “Who killed Taha?” opens this chapter and the answer is a negative response to the usual answer, that it was the Muslim Brotherhood and Hasan Turabi. Abdullahi argues that the qadis of the Judiciary had a better motive. Taha, who was condemned as an apostate in 1967, was actually the victim of a political vendetta from the longstanding conflict between him and the qadis. He mocked their authority and accused them of false interpretations of Shari`a in their September laws of 1983, and by 1985, the second apostasy trial, he mocked them again for failing to execute their own decision of 1967 and for building a Shari`a based upon their “false 1983 laws.” “Boycotting Shari`a courts did not endear Taha to his adversaries,” Abdullahi opines (p. 310). The Appellate judge in the 1985 trial (later the engineer of al-Bashir’s state Islamism) was al-Makashif Ta’a al-Kabbashi, who did not give the final chance for Taha to recant his heretical views, Abdullahi argues, because of his habitual disrespect for the courts. So, in the end, it was vindictiveness of the qadis that pushed for Taha’s execution and marked the turning point that ended the view of Sudanese Islam and its institutions as tolerant. This traditional view of a tolerant Islam, the author argues, is indicative of the overlooked and understudied aspect of power and orthodoxy when analyzed through the lens of the law and its implementers.

In this work, there are many advances in our understanding of the Sudan Judiciary, not the least of which is his detailing the “birth” of a unified Judiciary, completed in 1985. The reluctance of both qadis and judges to the merger reveals the ‘Manichaean delirium’ stalking the post-colonial state and stalling the process of decolonization. Merger was inevitable after independence but it took decades to accomplish due to the legacies of colonialism. The new Islamic alliance (Turabi, al-Mahdi, Nimerie and al-Bashir) found that by decolonizing the law and Islamizing the state, they had discovered a new source of political legitimacy. It was with the Committee on Revision of Laws to Conform to Sharia, headed by Hasan al-Turabi in 1979, when the first steps were taken to prepare for the merger. Having decolonized Shari`a, it is virtually impossible that it will be withdrawn, short of another imperial venture by the West. This helps to explain why anti-imperialist rhetoric by Islamist politicians remains so vehement and effective.

Manichaean Delirium is a provocative work, al the more welcome for the years it was in the making. Added to the above commentary, the book also serves to decolonize scholarship on the subject, some of which has relied almost exclusively on the colonial archives in England and Sudan. M.W. Daly’s historical tomes are a case in point. Abdullahi tells us as much that his book is about postcolonial theory, “something the first world thinks does not happen much in the third world” (p. 393). These are the words of a decolonized, or decolonizing, mind.

Beyond his meticulous research, Abdullahi offers us a postmodern drama set in the Judiciary, full of conflict, intrigue, and politics along Sudan’s inevitable journey out of colonial paradigms and mindsets. This makes the work rich in both its description and analysis, and one that I hope will be discussed and debated, in English and eventually in Arabic (insha Allah).

Carolyn Fluehr-Lobban is Professor of Anthropology at Rhode Island College

Abdullahi writes as an insider to Sudan’s Islamist intellectual and political tradition, and illuminates why not only the law, but the judiciary as well, was an arena of such significant political contest in colonial and post-colonial Sudan. He places contemporary Sudan within the wider post-colonial experience, using Frantz Fanon’s paradigms of the opposition between the European/canonical and the native/deviant, using the divided judiciary as his case.

British rule in Sudan, as elsewhere, was marked by a talent for divide and rule. This has been much-remarked in the context of the ‘native administration’ system, developed in the 1920s in order to marginalize the educated ‘detribalized’ elites whom, the British feared, would challenge their rule. The rural aristocracy was empowered—within very strictly defined limits—and became tarnished as ‘collaborators’ within the dominant nationalist political discourse. Sharia judges were also allocated their tightly-defined status within the system: low.

Abdullahi documents how the colonial subjects’ experience of British rule was hierarchically ordered, from matters of dress to education to urban geography. He poses a set of dualities. The colonizers and their carefully-chosen effendi clients wore suits and polished shoes (jazma), while the rest wore jellabiyas and markubs—and could be punished for violating the dress code. Khartoum was the modern city, laid out in a grid (with diagonals, said to resemble the Union Jack), while Omdurman the ‘native’ town retained its disorderly street plan. (To this day the executive is in Khartoum and the legislature on the other side of the river.) The administration used the Gregorian calendar and collected regular taxes and dues; the traditional system used the Islamic calendar and collected the Islamic Zakat. Students destined for prestigious posts attended the secular Gordon Memorial College close to the Governor-General’s Palace in Khartoum, those relegated to local affairs went to the Mahad al Ilmi (Islamic College) in Omdurman.

Abdullahi’s account is made particularly vivid by his gift for anecdote and personal observation. He recounts a story told by an old folklorist whose life story he compiled, describing how the schoolboys of Khartoum turned out for a parade in honor of a British colonial official. After long waiting in the sun, the officer arrived on his horse, inspected the schoolboys from the government schools but wheeled away at the very point where he came to the ranks of the boys from the khalwas (Quranic schools), who went away aggrieved, ‘staring into the void drilled by the refusal of that British official, the symbol of power and legitimacy, even to take notice of our presence.’

Abdullahi’s chief concern is how this duality translated into the legal sphere, relegating Islamic Law and its courts to second class status and a domestic sphere. Instead of being a nationally unifying factor, Sharia became a divisive issue. The qadis (judges) of the Sharia Division were junior to the ‘authoritative’ Civil Division. Qadis were required to wear a version of traditional garb including a turban (a dress code that some later adopted as a defiant gesture against western mores), were not entitled to receive salutes from policemen, and were widely ridiculed as ‘women’s judges.’ This refers to how the Sharia courts were visibly ‘women’s courts’, crowded with abandoned wives and their children and dispossessed widows hoping for the near-impossible to occur. Abdullahi notes that women preferred the Sharia courts to the tribal courts because Islamic law gives them more rights.

Imperial Sudan possessed neither a unified legal code nor a single judicial system. Among the majority, the sense of moral injury generated by the distinct second-class status of their own customary legal system, generated a rage for justice, unmet in the formal courts. Post-colonial Sudan was little different: the ruling secularized elites despised the Sharia courts, insensitive to their political plight and history. From the first days of independence, the search for a unified judiciary became a central theme of Sudanese politics. Abdullahi describes how this struggle translated into a ‘rage for masculinity’ and a preoccupation with sexual morality (including especially prostitution and homosexuality) in public discourse. It is not insignificant that Hassan al Turabi is the son of a qadi. Abdullahi breaks new ground in situating Turabi’s political philosophy in his family background.

In two provocative chapters, Abdullahi provides an Islamist perspective on the politics of Nimeiri’s Islamism. He is critical of the Republican Brothers’ leader Mahmoud Mohamed Taha, for repudiating the Islamic courts—rubbing in their faces the fact of their colonial origin and their inability to implement their ruling, made in 1968, that he was an apostate. Abdullahi describes the popular support for Sharia as stemming more from people’s hostility to the (secular) courts with their slow and expensive procedures, than enthusiasm for Islam. Nimeiri’s September Laws held out the promise of a unified judiciary, but disappointed. Abdullahi concludes by noting that Sudanese political society remains in a Manichean trap, and implies that a certain madness, a ‘logic of daring,’ will be needed to escape from it.

We are planning a debate on Abdullahi Ibrahim’s book and the deep questions about the Sudanese judiciary that it raises.