BOOK TITLE – Election, Violence and Transitional Justice in Africa
Topic: Electoral Processes, Electoral systems, Legal Frameworks, and Election Outcomes: Implications to Transitional Justice in South Sudan, Rwanda and Uganda
Abstract
This chapter reviews the management of electoral processes, electoral systems, and legal frameworks and how these can lead to different election outcomes and their implication on transitional justice within South Sudan, Rwanda, and Uganda.
Electoral processes generally refer to ground rules for registration, financing of political parties, moral code for electoral campaigns, levels of integrity of registration of voters, the choice of the system of registration, identification of voters, the voting process, and mechanisms for the counting and tallying of votes, the announcement of the results, among others.
In Africa, electoral processes have been poorly managed, and legal frameworks, especially the constitution, are rarely adhered to. These, in most cases, have led to negative election outcomes, electoral injustices, and sometimes degenerated countries into post-election violence. Addressing electoral injustices and post-election violence is part of transitional justice duty, crucial for the sustainability of peace in any country.
The assumption is that positive election outcomes enhance transitional justice, whereas negative election outcomes pose major challenges to transitional justice. In this light, the study focuses on the electoral processes, legal frameworks, and election outcomes within the three countries and their implication to transitional justice.
Definition of Key Concepts
Keywords: Elections, electoral processes, electoral systems, legal frameworks, electoral outcomes, electoral injustices, post-election violence, transitional justice
Introduction
In general, elections are the litmus test of any political system that claims to be democratic, whether more established or fragile (Mesfin, 2008). In general, elections refers to the legitimate process whereby the citizenry practice their democratic right to choose their political leadership; they may choose to retain or replace the existing political class. Berouk Mesfin, in his 2008 manuscript on democracy, elections, and political parties in Africa, posits that elections refer to the “the most critical and visible means through which all citizens can choose or remove their leaders.” (Mesfin, 2008) Elections compel political leaders to pay attention to the plight of the citizens. (Powell, 2000)
The history of elections in Africa began with the nationalist parties’ push for independence from the European colonizers’ socio-economic, political, and military domination. (Hodgkin, 1961) With the Republic of Sudan, from which South Sudan split, having had its first election in 1953 just before its gaining its independence from the British-Egyptian Condominium rule in Sudan in 1956. (Dargatz, 2011) Uganda held its first elections on 23rd March 1961 when it was on its path to disentangling itself from the old British rule. The results favoured the Democratic Party under Milton Obote, who would later become Uganda’s Prime Minister and eventually its President. Rwanda attained independence from Belgian rule in 1962 and has been a democracy in name only. The tiny state located in East-Central Africa was abruptly turned into a de facto one-party state in 1965. A de jure single party administered it between 1975-1991 under a Hutu majoritarian rule that was further entrenched by President Habyarimana and his cronies. (Reyntjens, 2011) The post-genocide transitional regime under the strong claws of President Paul Kagame has consistently made claims of moving towards a more democratic political space. Unfortunately, both 2003, 2008, and 2016 presidential and parliamentary elections provided no practical evidence that such claims were even going to be a reality in the near-immediate future!
The electoral scenario in both South Sudan and Uganda have not been any different. It is s fair to make the unfortunate pronouncement that electoral regimes have been worse in South Sudan and only remotely encouraging in Uganda. The only known democratic elections to have occurred in South Sudan took place in April 2010 under the auspices of the good offices of the United Nations Mission in Sudan (UNMIS), which had been bestowed to oversee the elections under the Comprehensive Peace Agreement signed in Naivasha in 2005. (Dargatz, 2011) The elections were conducted with the 2011 Independence Referendum beckoning at the Southern Region. It was hoped that a democratically elected government with popular support across the country would make unity once more attractive to the Southerners. (Dagartz, 2011) The South Sudanese were given a rare opportunity to vote for a Southern Sudan Regional President. The Sudanese Peoples’ Liberation Movement (SPLM) mostly fronted its candidates in the Southern region and avoided sending contestants to the North except in the contested regions.
Whether as a form of containment measure or as a result of a prior election pact with the ruling National Congress Party (NCP) regime is still not very clear. (Hemmer, 2009) What is clear is that the electoral process that governed these elections was hugely compromised. The legal frameworks that could hold those parties/individuals who committed any forms of electoral malpractices accountable were highly diluted. For instance, SPLM’s national presidential candidate was unceremoniously withdrawn from the ballot paper without any substantial explanation given that would warrant the action apart from underhand political dealings between SPLM political leadership and the Khartoum operatives. (Hemmer, 2009) There was spontaneous intrastate violent strife in a number of the contested regions such as the Abyei region that eventually led to the postponement of elections in the South Kordofan State (SKS). The threat of an all-out violent conflict was also very real due to the ongoing civil war between the Sudanese Armed Forces (SAF) and the JEM fighters in the nearby Darfur Region, which was effectively under observation by the United Nations African Union Hybrid Mission. This war threatened the elections.
The Republic of Uganda has also been a compelling theatre of inaction regarding the solemn democratic process of electioneering. When the Museveni-led National Resistance Movement (NRM) took over the state’s governance in 1986, they promised an immediate transition into a pluralistic democratic society. “The people of Africa-the people of Uganda-are entitled to a democratic government. It is not a favour from any government: it is the right of the people of Africa to have a democratic government.” This excerpt from President Museveni’s speech in 1986 just after the NRM had ascended into power. Thirty years down the line, the democratic reality of the Ugandan polity is out there for all to adjudicate. The President has been in charge of an authoritarian regime centred on NRM political elites with a heavy-handed grasp of the rural satellite Local Councils (Helle, 2016). To be clear, the circumstances under which the NRM resorted to re-introduce competitive multiparty elections were never informed by a desire to introduce the actual democratic process. The key driver was the urge to contain the simmering dissatisfaction that was already building up within the NRM ranks. In other words, as Helle and Recker put it, “it was a response to a decaying no-party system.” The NRM had earlier on presided over a system of leadership that sharply deviated from party politics. The entire population was ramped up together into NRM membership. This movement mentality coopted every individual, and loyalty to the ‘state’ or rather to the President was expected without question. District Resident Commissioners were used to suppress and control any potential political challenges that the state deemed threatening, especially in the rural areas.
The electoral regimes under which African elections take place leave much to be desired. Basic universal irreducible minimums for an activity to be considered an election are normally flouted with impunity. Ruling regimes masquerading as ‘parties’ set conditions unbearable to the opposition parties, civil society groups, domestic and international observation groups, and the judiciary, all of which are critical for any electioneering process to be considered worthwhile. (Mesfin, 2008) In particular, the RPF has been known to cause irreparable damage to real and perceived political opponents. Hiding their human rights abuses under the purview of concocted accusations such as ‘intentions to spread divisionism, spread genocidal ideology or cause an affront to the unity of the state of Rwanda,’ the Kagame led autocracy has enforced dire consequences on opposition personalities, domestic civil rights activists and even journalists. (Reyntjens, 2011) Enforced disappearances without a trace, cold blood assassinations, and illegitimate and unwarranted court proceedings that injure the opponents’ freedom have been the order of the day in the periods leading to and during the so-called ‘elections’ in Rwanda. The situation is so dire that culminating in the 2017 elections; the sitting President was able to influence the removal of term limits through a referendum in 2015, thus adding himself a further seven-year term hence making the political supremo capable of ruling Rwanda until at least 2024.
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The sustained negative outcomes of elections in these three states have made it exceedingly impracticable to launch any meaningful transitional justice mechanisms. Attempts to confront impunity, seek effective redress, and prevent human rights violations’ recurrence have been denied the opportunity to take root in all these three scenarios. (Mumma, 2020) In Rwanda, the minority backed Rwanda Patriotic Front (RPF) regime has muzzled any available political space for opponents in their entirety (Amnesty, 2017). This has made it difficult for the post-genocide to have meaningful fact-finding and reconciliatory processes apart from the Gecaca communal courts, which were supposedly meant to offer justice to the oppressed but were also opposed in other quotas. (Warldong, 2009) The state has failed to deal conclusively with cases of enforced disappearances and targeted murders of civil activists and opposition politicians. Such actions could as far as to implicate RPF’s very high ranking officials, so damaging could it be that it could even touch the executive’s epicentre!
A case in point is the most recent elections that took place in Rwanda in 2017. With numerous candidates fronting their candidatures either as independents or under their parties’ umbrella, the RPF regime machinery began grinding. Diane Rwigara, Frank Habineza, and Philippe Mpayimana all submitted their nomination papers to the National Election Commission (NEC) before the 23rd June deadline. (Amnesty, 2017) However, what was to precede their declarations to stand against Kagame would leave a lot to be desired of the Rwandan democratic arena. For instance, Diane and her family were subjected to a series of one arrest after the other under the pretentious allegations of having committed crimes of divisionism, preaching genocide, and threatening the state’s peace and prosperity. The NEC rejected her nomination papers claiming that she did not meet the required number of nominators and that some of the signatures on her nomination papers had been forged. Ms. Diane herself claimed otherwise. Diane was also subjected to a campaign of character mudding by the state apparatus, including the leaking of Diane’s nudes by unknown persons suspected of working for the state.
Another opposition candidate who faced harassment was Philip Mpayina. He complained of intimidation of his representatives by the local authorities and public members and the stealing of lists of signatories from Kamonyi and Rusizi Districts. (Amnesty, 2017) An attempt was made by the NEC to bar candidates from using social media during the campaigns; after backlash from the public and the parties, this decision was rescinded by the government. The killings and forced disappearances of public figures, especially those in the civil movements such as Jean Damascen Habarugira, killed, Violette Uwamahoro, disappeared and Iluminee Iragena, also killed in custody, was appalling. (HRW, 2019. Fox, 2019)
Another aspect of Rwanda’s 2017 elections that requires a mention is that it occurred under the divisive 2015 referendum’s backdrop, which had allowed Kagame to stand again as President. The referendum revised the constitution and gave the incumbent President a leeway to serve for another seven years. Therefore the legal basis under which Rwanda’s elections are held needs further inquiry. For instance, the matter involving observance of term limits has been annihilated with the referendum’s, which showed that the majority of Rwandans supported another term for Kagame, which was not premised on any legal or constitutional order. Kagame may once again use this allowance to vie in the 2024 elections. Which could extend his iron fist hold of Rwanda’s politics at least for another ‘decade .’The civil space for human rights groups such as LIPRODHOR, Human Rights League of the Great Lakes Region(LDGL), and even the Human Rights Watch have all been subjected to statutory bottlenecks that have included but not limited to invasion of their board rooms by the state interests, restrictions on the issuance of work permits for the foreign members of these organisations, legal and extralegal actions on the leaders of these groups on baseless charges for doing their work that include status reports on elections in Rwanda. (Amnesty, 2017) Therefore the capacity for these organisations to properly monitor the elections has been hugely compromised. Kagame has always won these elections with a staggering majority right from 2003, 2010, and the 2017 election, sometimes garnering as high as 98% of the total votes cast! It is perfectly safe to conclude that these elections have been no democratic process rather than a census of Kagame’s supporters.
The situation in South Sudan has not been entirely different. There is a lot that is at stake here. The sole electoral process that the youngest African State has ever seen, at least as an autonomous polity, was the 2010 elections under the Comprehensive Peace Agreement(CPA). (Dargatz, 2011) The CPA had provided an election for both the North and South that was to precede the much-awaited independence referendum. (ICG, 2011) The Interim National Constitution (INC) was the bedrock of guidelines for the right political atmosphere under which the maiden truly multiparty elections in Sudan since 1986 was to occur. (Dargatz, 2011)
Under the constitutional advisory committee’s auspices and the presidency, the INC established key institutions to guarantee the elections’ integrity. The Political Parties Council had the role of registering parties nationally. This role was excellently executed, with about eighty-four parties registered nationally, both in the South and the North. The second institution was the National Election Commission was mandated to oversee the entirety of the upcoming elections. Its roles would include management of the actual electoral process such as voter registration, management of electoral materials, conducting the elections on the D-day, declaration of winners, and hearing of appeals from aggrieved contestants. The composition of the commission itself was controversial since the membership was majorly a prerogative of President Bashir. However, as regards to the performance of its mandate, the commission can be said to have been majorly partial and loyal to the regime, especially the two leading parties, the National Congress Party (NCP) in the North and the Sudanese Peoples Liberation Movement (SPLM) in the South, which essentially divided the cake of political positions between themselves in anticipation for the oncoming independence referendum. (Dargatz, 2011)
This act further excluded other parties within the Sudanese society. Opposition parties were forced to withdraw candidature in most national political races, citing NCP’s plot to rig votes. Voter suppression was rife, with observers alluding that the Sudanese security personnel was used to instruct voters to vote for the NCP, especially for the National Presidency. The situation in the South unfolded in almost a similar dimension. The SPLM stifled the little political space that was still to be in the South. Alternative voices, even within SPLM, were not tolerated. Even the fact that the party eventually allowed these renegade SPLM members to vie as Independents while still retaining SPLM membership was only seen as a compromise to avoid further tensions in the South that would have hurt the prospects of the upcoming independence referendum. However, it was a known fact that the independents had a very slim chance of winning such seats. The result of this SPLM dominated Legislative Assembly was the absence of opposition party efforts in forming the new state. The ethnically fed civil war that was ongoing in South Sudan until August 2018 Peace Agreement was signed can be said to have been borne then. The SPLM ranks and key government positions in the South were dominated solely by one single community.
Other communities like the relatively populous Nuer tribe had to fend for themselves. The militarism culture that ran a moth in the South also made voting and electoral campaigns a nightmare, especially in some states where the competition between SPLM candidates and the independents was tight. Opponents would use violence or threat of it to bar their competitors from campaigning in their areas. (Dargatz, 2011. ICG, 2011) concerning the plight of women regarding the electoral process, the overall chauvinist approach to gender relations did not subside. Hence the role of women was thoroughly minimized in the entire electoral process. Apart from those women who were members of the SPLA/M holding military positions, women’s participation was limited. (DRI, 2009)
It is clear from the analysis of the history of elections in the three countries, South Sudan, Rwanda, and Uganda, that the nature of their electoral processes, electoral systems, and legal framework therein did not enhance a possibility of positive electoral results. In essence, going by the events as they are in these countries, with South Sudan having come from a bitterly fought civil war, Rwanda and Uganda experienced bad media regarding the treatment of the opposition and pressure groups by the ruling political class. (Fox, 2019.) There is an urgent need for these countries to reflect on their electoral regimes and find the fault lines. They both boast of bad precedence regarding relations among the multiplicity of interested parties within the state. Both South Sudan and Rwanda have been victims of violent interethnic clashes with an internationally acclaimed genocide in Rwanda that ended having taken the lives of almost a million Rwandans. (Waldorf, 2009). South Sudanese two main tribes have been involved in a civil war since the sunrise days of the new republic that has brought immense human suffering, massive death of over 400000 innocent civilians, displacement, and subsequent turning of over 2milion South Sudanese into refugees. (CFR, 2020) Uganda has also not been spared of its fair share of challenges with infighting for political control that only ended with the NRM’s coming to power in 1986. (Mutebi, 2016) Several governments were installed, deposed, and reinstalled in military coup de tats that normally bring with them pain and suffering and massive human rights abuses that only require the art of transitional justice to correct. For instance, the government of General Idi Amin Dada left the country damaged, at least as far as the value for human life and rights were concerned. (Kyemba, 1977. Melady et al., 1977)
Therefore, it is critical to involve the practice of democracy to give space for a more inclusive atmosphere that can enhance good transitional justice efforts. The argument here is that when democracy is given a chance to take root, then the resulting democratically elected government has more chances and legitimacy to initiate a broadly accepted attempt at providing the most meaningful justice possible at the prevailing political conditions. (Mumma, 2020). A case in point is the South African’s Truth and Reconciliation Commission under Archbishop Desmond Tutu, which only served to entrench the democratic process that had already occurred by the election of Nelson Mandela as the President in 1994. (Gibson, 2006) Therefore other aspects of transitional justice are followed by democratic elections. A positive electoral outcome enhances the spectrum of participation as the competing political parties all accept the election results and are ready to move on. Even when the outcome of the elections is not clear, as was the case in Kenya’s General elections of 2013 and 2017, a robust electoral process should foresee this and hence put in place the structure in which such matters can transition into the judicial institutions the society. In a society where the judiciary and its officers are deemed independent such matters can be resolved through litigation channels. (Kanyinga et al., 2019)
The path to sustainable redress for the millions displaced in South Sudan is by the SPLM leadership organizing free and fair elections that shall include all the other parties. It is also essential for the government to continue the process of compromise and accommodation, which is indeed the culture of Sudanese politics. Avoiding a winner takes it all mentality regarding the government’s formation, especially in the distribution of key ministerial positions. (Dargartz, 2011) As recently shown by the August 2018 agreement between the two major fighting fronts in the Sudanese civil war, this is very realistic. In addition to forging working cooperation between the two main parties, the South Sudanese Peace Process must address other smaller parties, women, youth, and other marginalised groups to have a fruitful result of setting the country on a path to full recovery.
Investigations into the extreme human rights violations that have occurred in both Rwanda and South Sudan must also be pursued as a matter of urgency. The military personnel and commanders and other security and political officials responsible for disappearances, assassinations, kidnappings in Rwanda, and indiscriminate killings and displacement of civilian populations in South Sudan must be brought to stand trial. The International Criminal Court’s (ICC) prosecutors and other judicial institutions, including the African Human Rights Court, must not close eyes and ears to these very extensive human rights abuses of the 21st century.
Regarding the state of electoral institutions, the observation here is that the electoral commissions and the legal frameworks that call them into being must be made fireproof and be protected from invasion by the sitting regimes. South Sudan’s peace process must produce, as its end goal, a dynamic constitution that will guarantee human rights and applicable internationally acceptable electoral laws and system that shall offer a level playing field for all the participants in whatever future elections. Uganda and Rwanda’s constitutional order must also be revised with the citizens’ popular participation to reflect internationally acceptable norms such as term limits for the President’s office, media freedom, space for participation of the civil society, and the guarantee of freedom of speech and association. The right to life is also under increased threat in Rwanda; this must be addressed. The killings and disappearances related to past elections must be investigated, and the perpetrators are held accountable.
Only then will these countries create the possibility of a sincere environment for transitional justice and hence secure a path to stability, peace, and prosperity. Failure to accomplish a pluralistic electoral regime shall entrench the prevailing political instabilities, including ethnic clashes in the North of Uganda, a civil war in South Sudan, and a potential armed resistance against the regime in Rwanda by the marauding Interahamwe militants stationed in Eastern DRC that continue to create a sense of insecurity and threaten the very existence of Rwanda as a state.
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