As the ICC Review Conference nears, it is time to consider how best to create a form of international criminal justice that is culturally and socially appropriate in non-Western settings.
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.
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.
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?
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.
Reading this brought the past four decades cascading through my memory. Arriving in Kosti Boys School in 1966 my first introduction to my colleagues on the staff revealed that almost all wore Western dress and taught in English across virtually the whole of the curriculum. However two, known as ‘mullana’, did not: they spoke no English; wore very formal ‘traditional’ dress; and taught Arabic and Islam. At one stage in the school year there was an open day featuring various school societies, and a very small and earnest group (one later to become governor of the Bank of Sudan under the NIF) set up a stall for the Muslim Brotherhood which attracted little attention. How things were to change. Teaching in the University of Khartoum in the late 1960s I became aware of the struggles over the efforts to ban the Sudan Communist Party; while nearly 20 years later, from my base in Reading but still laced with regular visits to the University of Khartoum, I followed the execution of Mahmoud Mohamed Taha and the rise of the Muslim Brotherhood. The outline of the political story of all this is well enough known, but the exploration here of the struggles […]
Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898-1985 by Abdullahi Ibrahim. 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, […]
It’s an unfortunate reality that books on Sudan by Sudanese authors—even those who have a wonderful English writing style, and who deal with their subject matter in a way that combines insight with accessibility—rarely get the attention they deserve. We should take a close look at Abdullahi Ibrahim’s recently-published history of the Sudanese judiciary: Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in the Sudan, 1898-1985, (Leiden, Brill, 2008). 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 […]