Is Transitional Justice a Fairy Tale for Africa?

As a response to what some term ‘unfair laws’ and policies, civil disobedience has graced the plots of political, economic and social stages in today’s population with a grudge against leadership and authority. This symbolic gesture, like the recent heckles from some of the opposition members of parliament during President Uhuru Kenyatta’s address to the state, are a norm of what lies beneath disagreements.

By definition, civil disobedience is ‘active, professed refusal to obey certain laws, demands, and commands of a government or of an occupying international power’ (Wikipedia).

Ideally, civil disobedience is effective where participants employ the use of non-violent tactics. However, picketing, protests, riots, demonstrations and other forms of disregard of authorities or people in power equate to civil disobedience in a rather more physical altercation than peaceful means of expression of disappointment in the law, law makers and law keepers.

India (Mahatma Gandhi’s campaign-Satyagraha, for India independence) and the American Civil Rights Movement in the United States of America and Dr. Martin Luther King Jr. are fair examples of what a ‘polite defiant campaign’ would look like. Although the fallen Indian father of defiance wished to call his movement a ‘civil resistance’ instead of a civil disobedience, the moral behind these two movements appeared justified for the times then.

The isolated violent occurrences during the same movements undermined the fabric for the civil actions.

Where a non-violent movement turns violent, it is proper to assume the activists have lost civility and are desirous of using and facing any other form of violence to demand from authorities what they assume is deprived of them. It is at this point the democratic or legitimate government or authority is allowed to employ ‘necessary’ means to defend its stronghold.

True, what drives a civil action against an established rule is the proper state of mind and moral responsibility of the afflicted who desire to inform their ‘oppressors’ of what matters suppress the former most.  However, participants have an obligation to society and its preserved or acquired ethics and morals to carry on their activities with utmost respect for their community dwellers, sometimes not of their ideology. The ‘individual’ as opposed to the ‘public’ must take priority in these exercises.

These occurrences though scattered but systematic, spell out a frightening force behind sporadic simultaneous and prolonged organisation and eventual happenings in the background. Unfortunately, they are marred by actual demonstrations and unrest leading to disturbances and disruption of non-participants’ livelihood. Mobs, tyrants, anti-social order activists and other elements with intentions to disrupt the peaceful aboard and lifestyle of non-participants espouse this term to justify their actions. Suffice to say that what once was a proper channel to seek fairness is then given a whole new meaning by using violent mechanisms.

The author of ‘Civil Disobedience’ essay (1849), Henry David Thoreau, emphasized the importance of respect for another’s privacy and liberty before demanding one’s.

Often, the tension and hype incorporated in coordinated and sometimes ill-advised practices will automatically result into violent actions. It is argued that the ‘good and fair’ intention of civil activists is prey to selfish and unruly elements ready to pounce on innocent and justified activists. The protests against the Independent Electoral Boundaries Commission (IEBC) in Kenya show the vulnerability peaceful protests face. They illustrate a hidden factor prone to violence given the nature of matter and the amount of emotions invested and as a bonus, the input of social media and other forms of media coverage for maximum attention gives fertile ground for as many acts of civil disobedience, whether violent or non-violent.

To obey or not to obey?

There are instances where some civil activists believe that a certain authority does not have the legitimacy to act, treat or operate as such simply because they did not support its establishment. Who is to blame for the activists’ incarceration? An authority cannot exercise any powers without having the authorisation to do so. That is why there is a law, a constitution or a set of pre-determined/agreed upon rules to govern any given society. In a democracy, the rule of law is determined by the majority. It is presumed that the majority will act for those they represent whilst giving considerable attention and concern to the minority. However, civil disobedience activists may acknowledge the legitimacy of a government or authority but still resist some if not all of its policies.

Constitutions spell out rights and freedoms of citizens and surely civic rights and activities are inclusive, though limited by the element of obligation to established institutions acting as law keepers.

Some civil disobedience activists are simply anarchists, without regard for any authority at all. This group does not honour any other ideology or form of authority but its own. Unfortunately, it may be spread out among the many with regard for authority/law and in so exercising its activism, cause disorder.

In courts of law, an accused of an anarchist leaning, for instance has the right to plead to a charge against them. He may choose to submit to his own code or out rightly deny the court of trial or choose to be imprisoned as an expression of what his protest is all about. Courts may regard two scenarios: one, where the law or the law makers are the object of disobedience and two, where the disobedience involves actual breaking of the law.

Whether justified or not, authorities rarely recognize these versions of civil disobedience as they deliberately affect the freedoms and rights of non-participants. In that sense, they are forced to react with full armour knowing that their actions are legitimate and ‘necessary’ to secure and protect the freedoms of those affected by civil disobedience turned into violent and disorderly conduct. Governments, on one hand are wary of any insurrection which undermines the conscience of law and order than the form used to express a discontent towards any of their policies, on the other hand.

Every picket, protest or resistance, civil disobedience as a tool to demand attention does have effects on the users and the non-users. First, the buzz of instability does not settle right with both the non-users and the authorities; the former, rightly in anticipation of unrest and disturbance and the latter, in fear of security and waste of resources on curbing the unrest.

For example, in anticipation of an ‘unfair’ poll result in August 2017, many protesters led by the Coalition for Reforms and Democracy (CORD), peaceful and non-peaceful, took to the streets in different towns in Kenya calling for the dissolution of the IEBC and for new electoral reforms. Some people in Kisumu and Siaya died as a result of confrontations with the police.

In March 2016, opposition candidates in Congo-Brazaville called on its supporters to participate in a ‘ville morte’ a.k.a. ‘ghost town’ and stay at home protesting against the re-election of their president Sassou-Nguesso in the first round of the presidential elections.

In Uganda, the ‘defiance campaign’ lingered on way before the actual presidential and parliamentary elections occurred. First, not to participate in a presumed ‘partisan electoral body’ electoral exercise, then the talk of ‘unfair electoral laws’ without reforms, the ‘non-participation preceded by few incidents of unregistered nationals’ and later a ‘rigged election’. Earlier, it was a ‘Walk to Work Campaign’. Also, after the incumbent president was declared winner, one of members in the leading political party called on masses to boycott music concerts staged by musicians who took part in recording a campaign song for the president’s re-election. Though compelling, it was misguided, given that the musicians too, have a right to political affiliations or personal choices in their careers.

On 8th May, 2016, a number of people locked the largest coal port, Newcastle port in Australia, calling for an immediate change from coal to renewable energy fuel use in the country. Other countries like the Philippines, South Africa, Indonesia, Canada and others experienced similar protests on the same cause.

Proposers of civil disobedience encourage all means of having their demands known and met often without or with less consideration for the negative impacts on many who do not share their ideologies. They leave unanswered questions.

  • Should governments allow their agents to use extra force to combat unrest?
  • Is protesting the suitable olive branch for attention?
  • How should courts receive cases of civil disobedience?

Sometimes, misconceptions about civil movements and actions arise where tribalism, nepotism, sectarianism, religious extremism etc that fuel non-violent acts of expression of dissatisfaction in any authority become violent reactions. Being the guardians of law and order, governments and authorities that are targets of civil disobedience actions are obligated to counteract the ‘threat’. It is at this point the rights and freedoms of all parties involved must be questioned and evaluated to avoid any abuse of power because the boundary to prolonged unrest and civility is thinned.

The overwhelming need for change should not cloud the underlying importance for peace and dignity of persons secondary to civil disobedience acts. In light of the current atmosphere for reforms and social justice, both citizens and governments must ensure respect for the rule of law and protection of vulnerable people and their properties. An organised, legitimate and lawful assembly is an ideal dosage for fair picketing than one of violence as long as the law is paramount. However, more emphasis should be put on seeking legal redress from courts of law and/ or engaging the legislature to enact favourable laws.

Mr. J.D Lotodo is quoted on page 1930 of the Kenya National Assembly Official Record (Hansard) of October 1st, 1996 saying that;

‘…In most cases, we have been hearing some of the Opposition Members calling for civil disobedience. We should know that in this country, should hell break loose, no one will be spared, irrespective whether one is in KANU or Opposition. It is our duty in this country to maintain peace and order because should hell break loose, I am sure that all of us would perish…’

The conscience of the ‘majority’ against the ‘minority’ in civil disobedience: evading reprimand

Agnes Macharia lost her passenger service vehicle (bus) in an inferno during one of the protests on June 6th, 2016. She sued CORD seeking compensation from the party (that staged the protest) for her burnt property. CORD applied to court to strike out Agnes’ matter. In his ruling, Justice Joseph Onguto of the High Court dismissed the application from CORD on grounds of lack of merit and further clarified that courts will always award damages (compensation) where identified. If Agnes’ matter succeeds, she and her transport company (other party) will be entitled to receive compensation from CORD.

In any attempt to solicit and gain support for an opposing point of view, it is crucial to consider the outcome of any subsequent action. Henry David Thoreau held the view that when an individual’s conscience and the law conflict, the individual must follow his/her conscience and must act in the present and not wait for a change in the future.

His argument might be applicable today but cannot be relied upon when dealing with matters concerning the democratic vehicles of today’s society where the law assumes the majority have an upper hand. The most intriguing concern is that while the democratic foundations of our society play a vital role in reasoning for the laws enacted, they also are the reasons for civil disobedience.

Should we heed to all voices of disagreement or do we still have reason to forge a uniform code supported by the ‘majority’ even if it is at the expense of the ‘minority’? How shall we, as a community of differing opinions, achieve a common ground?

It is familiar for the majority to assume almost absolute command of the society without consideration for the minority because that is exactly what democracy is: the rule of law by the majority! And whilst it is the right of the people to change a repressing law, it is their obligation to uphold sanity as the same law governs them.

How effective is civil disobedience?

Every situation creates its own result. Legal means for addressing concerns ought to work, at least. Court, legislative measures, lobbies, petitions, etc must be effective at first glance. Where they have not, civil disobedience, in response to a moral inclination has been regarded a fair and rational method. This also means that once civil disobedience is used, the civil activists have limited freedoms because they are willing to forfeit comfort and face severe consequences like imprisonment or any other physical apprehension. This is proper as long as what they stand for is the true conviction for fairness and not a selfish interest at the peril of their neighbours. However, not many who take the latter route vouch for peaceful methods.

This leads us to the question:

Why it is important to maintain peace and order during civil disobedience?

That to behave rationally and logically in exercising given rights and freedoms is the paramount reason.

Every individual has a right to participate in the activities of civil societies with social and political affiliation, if desired. In circumstances where a complaint arises, the affected party has the freedom of expression and may take up any means necessary and accepted by law to be heard and perhaps, later, to be assisted accordingly. This constitutional mandate however is limited by another legal provision – civil action must be in line with respect for other persons. Although government authorities have directives to protect people’s property, the persons who cause any disruption or injury to or destruction of another’s property or livelihood are also responsible.

In anticipation of a planned picket, demonstration or other form of civil action, the course must be within the law and extreme measures ought to be set by the activists to refrain from their initially peaceful actions from becoming violent.

 Some of the things you could do to respond to a civil action in your reach.

Let’s face it, sometimes the established authorities may ignore an injustice, whether deliberately or out of fear and suspicion for what can happen if there is a change. Often, it is because the norm to be tampered with is largely acceptable and few elements are disgruntled; and there is not much reason to change it. Also, it could be that the issue is too minute to consider or not favourable even for the person asking for it. Either way, a better understanding of what to do when trapped in this situation is fair game.

  1. Picketer/demonstrator/participant:
  • Have a just cause: This is the core reason for the civil activity. Not any cause is a legitimate one. Only the one that affects you or a loved one or someone/something you care about or anticipate will affect you if it is not dealt with at the moment. In law, legal practitioners must establish whether there is a cause of action or any other redress before they draw documentation to tender into to courts for a hearing or determination. Without this, the case/petition is dismissed for lack of merit. Similarly, have a cause for your action.

  • Seek authorization: You have a right to protection and promotion of your fundamental and other human rights and freedoms; as well as a freedom to express your views publicly. As long as your grievance is within constitutional provisions, you are free to ask for a platform to air out your opinion on its shortcoming or lack of it thereof. Simply make enough effort to reach all concerned officials to acquire proper consent to stage your civil activity.
Qn: What happens when you are denied authorisation?

Evaluate your next step of action. The current trend of social media could be your next platform. Solicit for public sympathy. Whether you continue with a picket, protest or other expression is your decision to make but make sure you actually are aggrieved and not out to disrupt social norm.

  • Accept only those who identify with your cause: You must be wary of foreign elements that might use your peaceful stage to create a standoff between you and the custodians of law and order. You may seek involvement from a recognised establishment like a Civil Rights Organisation or fellow workers who share in your plight or ideology. Remember, it is important to seek their consent first, if they had not been a part of the grievance prior to your intended civil action.
  • Cooperate with officers: For respect, life and reputation’s sake, consider proper communication with the officers of law and order on sight. In case your fair intentions taint, they are the first responders. It is important to have a cordial relationship with them because either way, they are the very officers charged with investigating your grievance or conduct, however much you wish to eliminate them from your actions.
  • Keep within permitted areas: Straying to private property is trespass and it gets worse where your peaceful act turns violent. The owner of the property is entitled to protect his/her property and may request the keepers of law and order (police) to interfere and evict you at anytime, in whatever way they see fit. Trespass can be to one’s property, self or land. It is criminal if it involves any form of force and the owner is permitted to defend themselves with any object, language, etc against you.

Also, the owner may institute charges against you in court for either criminal trespass or a tort.

Police officer:
  • Be professional: Ensure that you are calm and have received clear orders from issuing authorities to prevent a peaceful publicly or privately staged civil activity from becoming violent. You may offer some protection to the participants as long as they have previously sought authorization and are within the accepted perimeters.
  • Use reasonable force: Where the situation escalates into a violent confrontation, use reasonable force necessary to apprehend the culprits. Many officers in the law and order section have prior training on what amounts to ‘reasonable force’. Unless you become the target of attack, refrain strongly from initiating the confrontation. Act with reasonableness. It is the litmus to determining whether your actions were justified or not. The ensuing alibi from fellow officers will help acquit you of any other wrongdoing in the circumstances.
  • Identify notorious characters: These types of characters are known for pushing for physical confrontation. Maintain a keen eye on them. Chances are they may have infiltrated an innocent civil action for personal harmful motives like committing robbery, assaults and batteries, i.e. things you ordinarily guard the general community against.
  • Keep together: Do not drift from your comrades as you may need backup at any given point. The civil action make call for some form of tolerance to physical activity but it should not go beyond the legal system. Your compadres are your best alibi when things go wrong and you find yourself unjustly accused of a crime or offence.
Innocent bystander/non-participant:
  • Maintain a safe distance from the arena of the protest: While you may be interested in knowing what’s happening or watching the ‘drama’, you are at risk of getting caught up in the protest itself. If it turns aggressive, you are among the aggressors and if arrested can be charged as though you were part of it all.
  • Try to find the exit: You may be ambushed and find yourself in the middle of a large group. Go with the flow while scouting for the easiest corner to branch out and escape.
  • Be alert: Stay up to date with the news or information relating to the protest. It is easier to avoid getting caught up in the protest again.
  • Report to appropriate authorities: Like Agnes Macharia did, use legal instruments like court to hold any person(s) responsible for your hardship or loss of property during their civil disobedience activities. Ask an advocate to guide you on how to proceed. If you have physical evidence like video clips, pictures and voice recordings, to support your case, tender it in as tangible evidence to prove your case against the accused. You should not suffer for another’s actions where you were neither involved nor supportive of.

Rights, however many they are, should not cause burden to others not party to the circumstances, unless they share in the oppression. Carry your personal yoke save for when you have effectively secured followers or fellow believers in the cause. In our society, the developing constitutional realms we possess are still under attack, refine and launch, therefore call for prudence to mature. In refined societies, administration of justice is a divided responsibility not shouldered by one authority, government. The sooner we all realise it, the better.

BY ATUHAIRWE AGRACE

This article was published as a serie in two issues of our newsIetter, The Deuteronomy Volume 3, Issue 4 and Volume 4, Issue 1 under the title, Is Transitional Justice a fairy tale for Africa?  Civil Disobedience as a tool for effecting change: is it worth the effort?

 

 

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