Idealist or Realist Transitional Justice: Which Way for Zimbabwe? PDF

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/318725129 Idealist or Realist Transitional Justice: Which Way for Zimbabwe? Article in European Journal of Social Sciences · December 2015 DOI: 10.1080/09718923.2015.11893502 CITATIONS...

See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/318725129 Idealist or Realist Transitional Justice: Which Way for Zimbabwe? Article in European Journal of Social Sciences · December 2015 DOI: 10.1080/09718923.2015.11893502 CITATIONS READS 11 1,733 1 author: Everisto Benyera University of South Africa 29 PUBLICATIONS 179 CITATIONS SEE PROFILE All content following this page was uploaded by Everisto Benyera on 27 July 2017. The user has requested enhancement of the downloaded file. © Kamla-Raj 2015 J Soc Sci, 45(3): 199-211 (2015) Idealist or Realist Transitional Justice: Which Way for Zimbabwe?1 Everisto Benyera Department of Political Sciences, University of South Africa, Pretoria 0003 South Africa E-mail: [email protected] KEYWORDS Realist. Idealist. Transitional Justice. Zimbabwe. International Criminal Court. Human Rights Abuses. Victims and Perpetrators ABSTRACT There are two dominant theories that elucidate the broad choice of transitional justice mechanisms available to societies with a history of gross violation of human rights, the realist and idealist theories of transitional justice. While realists advocate for the use of political processes such as the adoption of truth commissions, idealist believe in the supremacy and primacy of the law in dealing with past human rights abuses. This paper discusses the two theories’ applicability to Zimbabwe while positioning endeavours of citizens who are using their everyday modes of life such as family healing mechanisms to seek historical accountability and reconciliation. When both law and politics fail to initiate mechanisms that deal with histories of gross violations of human rights, it can be said that ‘natural’ alternatives emerge. The conclusion of the paper is that there is need to conceptually broaden the scope of transitional justice away from presenting it as competition between peace/justice, realist/idealist, politics/ law toward an inductive one that recognises an array of everyday activities that have turned into transitional justice mechanisms. INTRODUCTION only exists when there are trials of suspects of human rights abuses. While realists believe that This paper grapples with the theoretical co- transitional justice requires bodies such as truth nundrum as confronted by post conflict and post commissions to facilitate the healing process, authoritarian states in their endeavour to get idealists subscribe to the primacy of the law and historical accountability for gross violations of prosecutions in getting historical accountabili- human rights. This debate has been variously ty for human rights abuses. posited in binary terms such as peace versus While what constitutes transitional justice justice (Sriram and Pillay 2009), truth versus jus- is general known (Kritz 1995; Lundy 2009; Mink- tice (Roht-Arriaza and Mariezcurrena 2003), pol- kinen 2007). It is however worthwhile to restate itics versus the law (Teitel 2005), or as this paper it so as to offer a working definition for the argu- will argue as realist versus idealist transitional ments to follow. Transitional justice mechanisms justice mechanisms (Teitel 1997). Using Zimba- refers to an array of instruments and mechanisms bwe (1980 to 2014) as a case study, the paper used in post-conflict and post dictatorial states argues for the broadening of Teitel’s (1997: 2009- to deter future abuses, seek accountability, and 2080) notion of transitional realism to encom- achieve a consensus on truth and reconcilia- pass non-formal everyday modes of healing and tion, among other goals (Benyera 2014b: 336). reconciliation which are practised in Zimbabwe Teitel (1997) divided transitional justice mecha- at family and community level. These mecha- nisms into realist and idealist mechanisms. Tran- nisms are not traditionally classified as transi- sitional idealism is an ideal type of transitional tional justice mechanisms yet they yield posi- justice mechanism in which all perpetrators of tive healing and reconciliation outcomes. gross violations of human rights are prosecuted In unpacking the above complexity, Teitel before competent courts of law. On the other (1997) analysed the competition between law and hand, transitional realism is a broad based com- politics in the formulation of transitional justice promise type of transitional justice in which the mechanisms in transitional societies. To explain victims and the perpetrators are involved in nav- her findings, she advanced a theory that she igating their past, with the perpetrators acknowl- termed ‘transitional jurisprudence’, according to edging their wrong doing and the victims for- which there are idealist and the realist mecha- giving them. Realist mechanisms of transitional nisms of transitional justice. Basically, idealists justice include truth commissions, reparations, believe that transitional justice in its purest form lustration, museums and other forms of memori- 200 EVERISTO BENYERA alisation, while idealists see trials as the primary transitional justice, idealism relies on the law. In mechanism of achieving justice. Transitional ide- their grounding, the former is predominantly a alism and to a lesser extent transitional realism political concept, while the latter is legal. Both does not consider informal grassroots mecha- realists and idealists agree that the effective- nisms in their conceptualisation of transitional ness of a transitional justice mechanism lies in justice. Yet in a country like Zimbabwe there are its prospects for realising democracy. A cor- mechanisms being used to heal, reconcile and rupt, captured judiciary will tolerate or even pro- achieve historical accountability which can nei- mote the impunity, while an independent judi- ther be clearly categorised as realist or idealist. ciary will influence the adoption of idealist mech- This alludes to shortcomings in the conceptual- anisms to address past human rights violations. isation of transitional justice as idealist or realist It can be observed that Zimbabwe is far from which can be attributed to the fluidity of transi- being idealist in its approach to transitional jus- tional justice which is admittedly still growing tice since politics captured the law and rendered both as field of study and as a practise. it subservient to itself (Compagnon 2000: 449- Before indulging in the realist/idealist de- 453). This created a policy vacuum which grass- bate, a qualification of the transition in transi- roots mechanisms naturally and actively filled. tional justice will be briefly undertaken. A saga- If Masunungure (2009) is correct in his as- cious entry point into the debate is Bell’s broad sertion that Zimbabwe was a transitional state definition of transitional justice. For Bell, transi- during the tenure of the government of national tional justice is an ambivalent abstractions which unity (GNU) between 13 February 2009 and 29 straddles three different concepts; transitional June 2014, a question can be rightly posed; justice as an on-going battle against impunity which type of a transitional state did Zimbabwe rooted in human rights discourse; and as a set assume? Was it an idealist or realist transitional of conflict resolution techniques related to process? If the failure of Zimbabwe’s political constitution-making; and a tool for internation- transition during this period is a fact, can it be al state-building in the aftermath of mass atroc- due to the fact that the wrong transitional model ity (Bell in Castern 2012). In this regard, a politi- was followed? This paper unpacks these issues cal transition must be simply understood as that first by exploring the two models of political tran- interval between one political regime and anoth- sition, namely idealist and realist transitions. er (O’Donnell and Schmitter 1986). Bratton and This is followed by a section which critiques van de Walle (1997: 10) agree and posit that a both idealist and realist political transitional political transition is a shift from one set of polit- models by arguing for the broadening of the ical procedures to another, from an old pattern notion of transitional realism to encompass to a new one. It can therefore be proffered that modes of everyday healing which are not classi- Zimbabwe’s political transition began on 15 Sep- fied as typical transitional justice mechanisms tember 2008, when a Global Political Agreement (Benyera 2014b: 335). (GPA) was signed between the two Movement for Democratic Change (MDC) parties and the TRANSITIONAL IDEALISM Zimbabwe African National Union Patriotic Front’s (ZANU-PF). According to Masunungure Transitional idealism conceptualise transi- (2009) the process of political transition in Zim- tional justice as a political process. It refers to babwe required a movement away from ZANU- those theories and practices that deal with the PF’s political hegemony to something other than ideals of a ‘better’ world, state, politics and laws its undiluted political domination, a situation and is traceable to Plato, who is considered the which the GPA provided. Whether Zimbabwe father of idealism (Nightingale and McDonald regressed from the political transition provided 2003: 555). Plato’s contribution to the philoso- for under the now expired GPA is a debate that is phy of idealism is contained in his masterpiece, beyond the scope of this paper. The Republic (380 CE) which is concerned with Some preliminary comments on the differenc- the definition of justice and the order and char- es between transitional realism and transitional acter of the ‘just city state’ and the ‘just man’ idealism would suffice. The main difference be- and examines whether or not the ‘just man’ is tween transitional idealism and realism is that happier than the ‘unjust man’. Regarding ideal- while realism relies on political means to achieve ism, Plato posited that: IDEALIST OR REALIST TRANSITIONAL JUSTICE 201...we are inquiring into the nature of abso- lar modes of democratic governance do not fight lute justice and into the character of the perfect- one another (Huntington 1993: 22-49). There- ly just, and into injustice and the perfectly un- fore, to deter the recurrence of violence, transi- just, that we might have an ideal (1901: 163). tional idealists argue that all transitional states It can be deduced that idealism is utopian in must align themselves with the ideal type of de- that it deals with the nature of absolute justice mocracy. One well-known proponent of ideal- and the pursuit of an ideal society. Jayapalan ism was the former United States President, (2002: 119) noted that idealism sets out to un- Woodrow Wilson, whose idealistic thought was derstand the character of the perfectly just, embodied in his ‘Fourteen Points’ speech (Rossi- which is desired, as opposed to the perfectly ni 2008: 63), which he delivered before a joint unjust, which has no place in the ideal society. session of the American Congress on 8 January Extrapolated to the concept of transitional jus- 1918. The address was intended to assure the tice, transitional idealism seeks notions of abso- country that the Great War was being fought for lute criminal justice, not compromise justice. This a moral cause and for the sake of post-war peace ideal justice is seen to be achievable through in Europe (Bradford 2010: 159). Wilson was also the application of the law in an effort to create a instrumental in the formation of the League of just and ideal society. Idealism deals with ‘what Nations, founded as a result of the Paris Peace ought to be’ and is therefore prescriptive in its Conference that brought World War One to an view of what is supposed to occur in a (perfect) end. It was the first permanent international or- system of justice. Distilled to its basics, transi- ganisation to embody the idealist notion of col- tional idealism holds that all perpetrators must lectively maintaining world peace (Duncan et al. be held accountable for their past violations of 2008: 171). human rights. Transitional idealism’s major mech- In preparation for the next section, which anism is prosecution, either in local courts or explores the notion of transitional realism, it is international institutions such as the Interna- prudent to consider some preliminary differenc- tional Criminal Court (ICC). es between transitional idealism and transition- In its quest to attain a just and ideal society, al realism by deploying the theory of transition- transitional idealism addresses its obstacles by al jurisprudence. This theory articulates the na- applying the letter and spirit of the law, conse- ture and extent of the competition that exists quences notwithstanding (Fuller 1958: 630-672). between law and politics in the formulation of Idealism postulates that transitional justice must transitional justice mechanisms (Teitel 2000: 3). be induced and realised, because it resides ‘else- For idealists, democracy is attained when the where’ (probably in some institutions such as principle of the rule of law and the supremacy of the courts of law) and not in the society or in the the constitution are attained or restored (Anto- victims and perpetrators. These transitional ide- ine 2009: 98). In arguing for the broadening of alistic practices are believed to have gained prom- transitional idealism beyond prosecutions, Ndu- inence through the championing of the doctrine lo and Duthie (2009) saw value in twinning tran- of universalism, which gained ground with the sitional justice with broader post-conflict devel- demise of communism. Its proponents argue that opment programmes, rather than treating transi- transitional idealism’s major strengths lie in its tional justice as a stand-alone post-conflict pro- ability to curtail vengeance by instituting indi- gramme. This conceptualisation forms the basis vidual accountability (Kritz 1995: 280; Schabas of transitional realism, which will be the focus of 2008: 70). Idealism’s obsession with universalis- the next section. tic prosecutorial transitional justice is also its Achilles. Some cases of human rights abuses, TRANSITIONAL REALISM their brutality and unacceptability noted, are better off dealt with using particularistic politi- A number of studies have broadly explored cal processes. The logic being that political prob- the relationship between realism and idealism lems are often solvable through political pro- (Burley 1993; Farrell 2005: 263-283; Tomuschat cess as opposed to legal means. 2014). As espoused by Teitel (1997), transitional The strongest appeal of transitional ideal- realism is a direct derivative of political realism. ism comes from its (associated) democratic As a concept, political realism has been used in peace theory, which holds that states with simi- connection with theories claiming to be con- 202 EVERISTO BENYERA cerned with the observance and analysis of po- ty, mainly through prosecutions. Thus transi- litical facts, with the ‘what is’ of politics and tional realism is a local phenomenon based on history. Philosophically, realism is traceable to local cultures, realities, traditions, perceptions and Baruch Spinoza (1677) who expressed his views needs. Transitional realists perceive democracy on realism in his work titled Tractatus politicus as the opening up of spaces that were previously (or ‘Political Treatise’), which he wrote in 1675, the preserve of the predecessor regime. The open- but which was published posthumously in 1677. ing of these spaces can take the form of electoral, The treatise deals with a range of issues, includ- media and or constitutional reforms. In addition, ing an analysis of all forms of government, gen- and in agreement with transitional idealism, real- der equality and peace. Spinoza noted that: ism subscribes to the need for free and fair regu- …on applying my mind to politics, I have lar elections as a basis for democracy. resolved to demonstrate by a certain undoubt- Transitional realism focuses on local transi- ed course of argument or to deduce from the tional justice mechanisms that represent a re- very condition of human nature, not what is buke of defeatist tendencies in that they epito- new and unheard of, but only such things that mise communities’ initiatives to seize opportu- agree best with practice. I have laboured care- nities and initiate some form of justice. These fully not to mock, lament … but to understand are termed local transitional justice mechanisms human actions (Spinoza in Nadler 2001: 342). and as a broader concept they are not definable Certain tenets of political realism are observ- in geographical terms alone, although geogra- able in the above quotation. Realism does not phy is an integral part of their definition. In addi- deal with new concepts; rather, it concerns itself tion to spatial boundaries, local traditional jus- with what is already known to constitute gener- tice mechanisms include concepts and practic- al practice. Its key characteristic is that it en- es of local ownership and the engagement of deavours to understand human actions. When those most affected by the conflict (Lundy 2009: applied to transitional justice it implies that real- 321). They entail processes in which local in- ism is concerned with the general practices of habitants have a real and significant say in the societies, developed by these societies and used formulation, implementation and evaluation of over time. transitional justice mechanisms that reflect their For Machiavelli, who noted in The Prince own perceptions of reconciliation, specific cul- (1513, titled De principatibus), realism is the tures and values. This involves what Lundy and political doctrine of expediency. Transitional re- McGovern (2008: 1) termed the ‘voices from be- alism therefore deals with what is happening in low’, local agency and popular participation and post-conflict and post dictatorial societies as represents a departure from the legalistic, top- opposed to an absent ideal that is desirable. In down, ‘one-size-fits-all’ idealist transitional jus- reaching realistic practices and solutions, tran- tice framework. This broader realist conceptual- sitional realism takes cognisance of the obsta- isation helps to address the shortcomings in- cles that are or may be inherent in any rational herent in idealist mechanisms, such as their in- solution. In effect, transitional realism manoeu- ability to deal adequately with the issue of re- vres around these obstacles, and does not con- sentment, which can manifest in the form of vic- front them in its quest to attain transitional jus- tims who refuse to forgive those who harmed tice. It posits that transitional justice solutions them, for instance. Idealist mechanisms have are inherent in societal social facts and trends, tended to impose what Derrida (2000) calls the which are bottom-up, less judicial, culturally rel- conditional forgiveness of ‘social therapy’ on evant, reconciliatory, restorative, victim-centred, victims. locally derived and less costly (financially) to However, realist transitional justice mecha- implement (Benyera 2014: 335). nisms require interrogation in order to ascertain By definition, transitional realism refers to their capacity to deliver what Minkkinen (2007: an array of mechanisms and institutions that 513-531) terms ‘just’ forgiveness. This eliminates constitute a part of everyday life, used by post- the possibility of impunity disguised as pardons conflict communities to seek reconciliation, re- and amnesties which, according to Kant (1914: trieve the truth and get reparations, inter alia. 337), constitute the greatest wrong because they This represents a radical departure from transi- break the important formal link between crime tional idealism, which emphasises accountabili- and punishment. This broader realist view as- IDEALIST OR REALIST TRANSITIONAL JUSTICE 203 sists in revealing transitional justice mechanisms tatorships. These ideals include such in-vogue that are used in communities which experienced phrases as reconstruction, rebuilding, reunit- what Shweder (2005: 181) terms the ‘collision of ing, refocusing, restarting, and so on. At times, cultures, rights and traditions’. Transitional re- there will be no one to reunite with, nowhere to alism takes into account factors such as the en- rebuild, nothing to refocus on and nowhere to vironment, culture, health, gender and religion, restart. which transitional idealism rarely considers in The major characteristic of realism, as ob- its application of transitional justice. The exclu- served earlier, is that its various mechanisms are sion of victims’ voices and social practices by bottom-up processes and not events. Some of idealists does not permit a full comprehension these bottom-up processes utilise the concept of the extent of the role that the presence of of the ‘living dead’ (Villa-Vicencio 2009: 142), material, as well as gender, socio-cultural and which is a central pillar in African traditional be- spiritual factors plays in the victims’ perceptions lief systems. These belief systems in turn give and attitudes towards justice and reconciliation meaning to traditional transitional justice mech- in post-conflict societies (Igreja 2007: 55-56). anisms. As an idealist universal concept, tradi- From the above discussion, key characteris- tional transitional justice is difficult to concep- tics of realist transitional justice mechanisms can tualise, because it tends to be particularistic, be identified. They are victim-centred, locally both in the way it is understood and in the way conceived and locally implemented. The mecha- it is expected to deliver by individual victims nisms are not alien or new to the communities, and perpetrators (Layus 2010: 93). This individ- because they include everyday reconciliatory ualistic conceptualisation renders elements such community endeavours. Most importantly, they as collective memory very difficult to employ, are bottom-up and flexible in their response to because gross violations of human rights affect the healing and reconciliation needs of the vic- individuals differently. The affected thus also tims and the perpetrators. This contrasts with expect different remedies and memorialise such dominant theories of transitional justice, which events differently (Igreja 2007; Eppel 2001: 8). share a common weakness in that they often These remedies vary according to a range of presuppose foundations that are unavailable in factors such as culture, gender and religion. the context of political transitions (Leebaw 2001: Transitional realism emphasises the seem- 364). For example, advocacy for transitional pros- ingly obvious fact that victims are central to the ecutions often relies on the premises that are dispensation of transitional justice, because they drawn from the manner in which prosecution are the primary wronged and because they are functions in a stable regime. Similarly, critics of the ones requiring direct compensation and heal- prosecution who champion reconciliation, im- ing (although to some extent, perpetrators need ply a pre-existing homogenous community of healing as well). In contrast, idealist mechanisms victims that requires healing in order to progress focus mainly on the offender and insist that jus- toward the rule of law (Leebaw 2001: 264). tice be not only done, but is seen to be done. The reality is that victims and perpetrators These differences are also manifested in the often reside in the same communities. In some manner in which the two approaches view am- scenarios, the same individual who was a victim nesties. Idealists view amnesty as a violation of at one time may have turned perpetrator at an- human rights (Martin 2006: 172). For them, am- other time. Transitional idealism also tends to nesty means that victims suffer twice, because ignore dynamics of local environments such as amnesty allows offenders to evade accountabili- culture, religion and customs. Consequently, it ty for their actions or the payment of compensa- lacks the capacity to deal with complexities such tion. Realists, on the other hand, view amnesties as victims who genuinely refuse to forgive, as as a ‘necessary evil’ that aids the process of truth well as the problems associated with individu- telling and truth recovery. Idealists are concerned als who are both victims and offenders, some- that transitional justice mechanisms such as am- thing that is common in communities where vio- nesties are open to abuse by both politicians and lence is or was recurrent. The same theories perpetrators, to the detriment of victims. emphasise ideals that appear to be very difficult Recent evidence pointing to this kind of for the local communities to comprehend in the weakness with amnesties comes from South Af- aftermath of protracted mass violence and dic- rica, where in 2002, President Mbeki pardoned 204 EVERISTO BENYERA 33 human rights abuse offenders under the Spe- TOWARDS A BROADER REALIST cial Presidential Pardon programme (Institute of THEORY OF TRANSITIONAL JUSTICE Security Studies News: 29 June 2012). Other amnesty beneficiaries such as Dirk Coetzee, the On the basis of the preceding analysis of late co-founder and commander of the covert realist and idealist theories of transitional jus- South African Police unit based at Vlakplaas, tice, it is important to note that a broader realist were granted amnesty as a last resort in their bid view is not only necessary, but overdue. This to avoid prosecution. In a television interview broader view consists of an array of traditional, on SABC 2’s morning show on 8 March 2013, community and other non-state transitional jus- former Truth and Reconciliation Commissioner tice mechanisms. Traditional transitional justice, Advocate Dumisa Ntsebeza expressed regret that also known as localised transitional justice, can perpetrators like Coetzee had managed to ma- best be described as a notion of place, people nipulate the amnesty procedure and received and processes (Lundy 2009: 321). It defines lo- pardon. This allowed Coetzee to go to his grave cal transitional justice mechanisms as a set of with the secrets of his hit squad, which included locally informed reconciliation and peace-build- the whereabouts of many anti-apartheid and ing practices that emerge within a particular so- human rights activists who disappeared during ciety, and which are different or unique to that apartheid. Such manipulations of amnesties dis- geographical place. Lundy (2009: 329) rightly credit transitional realism and give credence to states that: idealist transitional justice mechanisms, espe- the crux of the matter is how local popula- cially trials. Broader transitional realism enhanc- tions are conceptualised, as active agents of es the capacity to extend the scope of transi- change, stakeholders, sources of knowledge and expertise, or as passive victims and mere tional justice to include non-formal mechanisms recipients. such as those used at grassroots level, as well In the Zimbabwean context, the localised as other mechanisms not traditionally classified nature of broader realist transitional justice mech- as transitional justice mechanisms. This theory anisms allows for the nuanced analysis of cus- is ideal for Zimbabwe, where the scope of transi- tomary practices that were turned into transi- tional justice is broad and citizens have em- tional justice mechanisms, especially in the rural ployed a diverse range of innovative mecha- areas of the Shona-speaking districts of Zimba- nisms to seek healing and reconciliation inter bwe (Marongwe 2012). The advantage of broad- alia. er transitional realism is that it allows for an ex- Elsewhere, the transitional realism theory has pansion of the current understanding of impu- been applied in other scenarios of reconcilia- nity beyond the legal definition to include other tion. Thomson and Nagy (2011: 11-30) applied it forms such as environmental impunity, religious in their study of Rwanda’s gacaca community impunity and financial impunity, which is de- courts, which focused on the relationship be- fined as follows. Environmental impunity is the tween law, power and justice as they impacted wanton destruction of the environment during on the lives of ordinary Rwandans. Their study war or periods of gross violations of human showed that transitional idealism and transitional rights. The most widespread form of environ- realism are not at the extreme ends of a continu- mental impunity is the laying of unmarked land- um; rather, they can be stretched to create over- mine fields, destruction of forests, poisoning of laps, which allow the benefits of both to be en- rivers and the use of chemicals harmful to the joyed. This hybridisation is evident in the ‘le- environment during war. An example is the al- galisation’ process which the traditional gaca- leged use of anthrax by Rhodesian government agents and the contamination of several water- ca institution underwent as it was applied after courses near the Mozambique border with the the Rwanda 1994 genocide. It was a hybrid of cholera bacteria and warfarin, which is a blood- the traditional process, which was ‘amended’ in thinning anti-coagulant commonly used as the order to cope, inter alia, with the complexities active ingredient in rat poison. Poaching is also of modern-day justice while still being adminis- another form of environmental impunity. It main- tered locally and thereby remaining accessible ly serves two functions; to provide combatants to citizens. with food and to raise money through the illicit IDEALIST OR REALIST TRANSITIONAL JUSTICE 205 sale of products such as ivory and game leather willing, competent and unbiased judiciaries, ei- (United Nations Environmental Programme 2007: ther domestically or internationally. The reality 94). As a crime, environmental impunity remains is that criminal accountability occurs at two lev- under- investigated in Zimbabwe. On the other els; that of the offender and that of the criminal hand, religious impunity is the abuse of various justice system itself. The accountability of the religions and their aspects for political gain. It latter is particularly crucial as its failure leads to involves, inter alia, the manipulation of religious impunity and warlordism. In a realist world dom- leaders to carry out or support certain policies, inated by power politics, this assumption ap- which ordinarily they would not have support- pears farfetched, because most violations of ed. It also involves the abuse of religious pow- human rights happen in societies where the ju- ers by the religious leaders for their personal diciary is either biased or not independent. This political gain. Financial impunity is akin to em- is why realists do not subscribe to the suprema- bezzlement and occurs during war and similar cy of law over politics, advocating instead for political disturbances when individuals and or- changes and amendments in laws to suit certain ganisations pilfer huge sums of money, some- prevailing conditions. According to realists, tran- times siphoning it off into offshore accounts. sitional justice necessitates the departure from This practice also involves supporting and prop- punitive and repressive laws, a move toward the ping up of illegal regimes in exchange for busi- moral right and away from the legal right (Hart ness opportunities and lucrative tenders and 1958: 593-629). The next section focuses on the contracts. These factors are elusive in the dom- role of the law during transitional periods as inant views of transitional justice, yet they are viewed by transitional idealists and transitional central to reconciliation because they inform the realists. expectations of both victims and perpetrators. Besides the practicalities of broadening re- THE ROLE OF THE LAW DURING alist transitional justice as argued above, there THE TRANSITIONAL PERIOD is also a strong theoretical motivation for under- taking this endeavour. The manner in which the Transitional idealism is useful in understand- idealist theory defines political transitions as ing the relationship between the law and human postulated by Huntington (1991) and O’Donnell rights, especially in countries where the rule of and Schmitter (1986) is problematic. Defining the law is weak or compromised. A general charac- transitional period purely as a movement to- teristic of dictatorships and illegitimate regimes wards liberal democracy or some democratic pro- is the occurrence of constant clashes between cedure limits the conceptualisation of transitional human rights and the law (Kritz 1995: 97). These justice. The concept of political transition needs occur when dictatorships enact immoral laws to to be broadened to include other non-state (apo- oppress citizens while simultaneously propping litical), non-legal practices that seek historical up their regimes, thereby turning citizens into accountability for human rights abuses, espe- subjects (Fridell 2007: 57; Ndlovu-Gatsheni 2011; cially those that succeed in reconciling and heal- Mamdani 1996). This contest is cast elsewhere ing conflict torn communities. These practices as parliament versus the constitution (Eleftheri- occur as a result of a shift in both the legal and adis 2007: 1) and occurs when individual human the political situation from radicalism toward a rights enshrined in the constitution are overrid- more liberal approach. This leads to the creation den or suppressed through the deployment of of an opportune moment for citizens to seek tran- institutions set up by democratic processes sitional justice using the various mechanisms at such as the army, intelligence and the police to their disposal without necessarily waiting for brutalise citizens. Transitional realists argue that the state to initiate such healing programmes. transitional periods are good time to rewrite the For idealists, the transitional period both con- constitution, while idealists, as postulated by stitutes and constructs the unique legal system Hart (1958: 593-629), argue for the observation in which it operates and in which prior injustices of all written laws, their immorality notwithstand- inform the conceptualisation of justice (Teitel ing, until such laws are repealed or amended. In 2000: 222). most cases, constitutions are forward-looking, Another shortcoming of transitional ideal- but in transitional periods they are also remedial ism is that it often presupposes the existence of and backward-looking (Teitel 2000: 225). These 206 EVERISTO BENYERA constitutions or constitutional amendments are definition of transitional justice as the concep- useful in addressing past abuses and instrumen- tion of justice associated with periods of politi- tal in seeking historical accountability, while cal change, characterised by legal responses to deterring such abuse from happening again in confront the wrongdoings of repressive prede- the future. cessor regimes. Constitutions have been used to propel tran- While the superiority of the law is unques- sitional justice as occurred in Zimbabwe and tioned by realists during peaceful times, they South Africa post 1980 and 1993 respectively. In question the supremacy of immoral laws enact- South Africa, the then interim Constitution of ed by dictatorships and regimes, which they ar- the Republic of South Africa Act 200 of 1993, gue are akin to the proverbial fruits of a poi- which was later repealed by the current Consti- soned tree (Bohl 2006: 571). It is these conten- tution of the Republic of South Africa [Number tious laws that realists argue should be discard- 108 of 1996], stated in its preamble that: ed during the transitional period in order to en- …it is necessary for such purposes that pro- able the democratic transition to be effective and vision should be made for the promotion of na- in order to prevent the state from sliding back tional unity and the restructuring and contin- into gross violations of human rights (Fuller 1958: ued governance of South Africa while an elect- 630, National Constitutional Assembly (Zimba- ed Constitutional Assembly draws up a final bwe) 2001). The centrality of the law in transi- Constitution. tional justice is demonstrated in Teitel’s (2003: In Zimbabwe, Constitutional Amendment 69) definition of transitional justice in which she Number 19 was the legal instrument that pro- characterised its role as ‘shepherding’ the state vided for the GPA signed by the three major po- through the precarious transitional period, ini- litical parties, which in turn made provisions for tially enabling judicial reform and subsequently the writing of a new constitution. Paper 7 of the holding those who committed human rights abus- same instrument specifically mentions and man- es accountable for their actions. According to dates the GNU to: Teitel (1997: 2009; 2000: 7) and Williams et al. (2012: 59), law in transitional periods is commonly... give consideration to the setting up of a conceived as following idealist conceptions mechanism to properly advise on what mea- unaffected by the prevailing political context. sures might be necessary and practicable to The law is seen as separate from and superior to achieve national healing, cohesion and unity politics as enshrined in rigid constitutions and in respect of victims of pre and post-indepen- must be obeyed in all instances (Withana 2008: dence political conflicts. 57; Slapper and Kelly 2011: 455; Hart 1985: 593). According to Teitel (1997: 2017), human This translates to the superiority of the consti- rights violations are legally said to have occurred tution over parliament, as is the case in a consti- when the value of legal change was in tension tutional democracy. with the value of adherence to the principle of On the other hand, transitional realism is settled legal precedent. This is also called ‘break- concerned with the legislative environment dur- ing the rule of law’ and it has occurred with la- ing the transition period and the nature and role mentable frequency in Zimbabwe since indepen- of law during these periods (Teitel 1997: 2009). dence. This fact was admitted by the GNU when Idealist transitional justice mechanisms that are it was inaugurated through the GPA (Preamble imported into post conflict societies, such as to the Global Political Agreement 2008). For tran- ICC prosecutions, are legally complex, render- sitional idealists, the law remains superior, what- ing transitional justice complex and elitist (Hin- ever form the state adopts during the transition- ton 2010: 59). Sriram et al. (2012: 52) call this the al period. This is expressed in the dominant role ‘judicialisation’ of transitional justice. Realists of the law during transitional periods and the oppose this ‘judicialisation’ of transitional jus- superiority of the law in terms of the supremacy tice, claiming that trials create fairly individual- of the constitution (Teitel 2009: 2014, Khan 2003: ised accounts of human rights crimes which de- 255). According to this view, the law has a com- prive the post-conflict communities of a chance plex role to play in periods of political transfor- to understand the full extent of the patterns of mation from human rights abuse toward democ- human rights abuses that they suffered (Abou- racy. Idealists are aligned to Teitel’s (2003: 69) el-Fadl 2012: 10). International Law Statutes, as IDEALIST OR REALIST TRANSITIONAL JUSTICE 207 interpreted and implemented by the ICC, are a healing and reconciliation in a manner that is complex set of procedural remedies that are too non-legal – more so when the law had previous- legalistic for most citizens to understand (Lahai ly displayed a strong tendency to be annexed 2012). A case in point is the prosecution of Con- and abused by the ruling elite. It can be con- golese warlord Thomas Lubanga. Instead of cluded that the main difference between transi- bringing peace to Eastern Democratic Republic tional idealism and transitional realism is the of Congo (DRC), its actually brought reprisal manner in which they interpret the role of the attacks by his militia. Asked by international law during the transitional period. news network al Jazeera what they thought about the work of the ICC in ending impunity and hu- WHICH WAY FOR ZIMBABWE, man rights abuses in Ituri District of Eastern DRC, REALISM OR IDEALIST: one responded noted that, SOME RECOMMENDATIONS ‘...we don’t know anything about the Inter- national Criminal Court or peace. All we know The nature of political violence in Zimbabwe is running away’, (Unidentified Ituri resident: can be characterised as systemic, reproduced, Interview with Al Jazeera, 25 February 2013). deep and wide. It can also be cast as racialised, Teitel (1997: 2014) addresses the question of tribalised, and class based. This complex nature the stage during the political transformation pe- of violence requires equally complex set of tools riod at which the law starts to apply in an ideal- and mechanisms to heal and reconcile such com- ist transitional state. For idealists, transitional munities divided by violence for decades. These justice should be concerned with gross viola- mechanisms are broader realist transitional jus- tions of human rights during the two regimes tice mechanisms. They are bottom up, locally (predecessor and successor), ending with some sensitive to such nuances as culture and most objective political procedure such as the writing importantly endogenous to the communities. of a new constitution or the holding of inclusive These mechanisms can be described as induc- elections (Bernal et al. 2011). Idealists believe tive owing to their origin within the violated com- that the acceptance of the rule of law by all ma- munities. Instead of describing and listing these jor political forces signifies the end of the transi- mechanisms, this section will argue why both tion period (Teitel 2000: 214; United Nations 2006: idealist and realist transitional justice mecha- 294). According to Huntington (1991: 65), the nisms are not suited for Zimbabwe. Prosecutions transition period ends when the most powerful will be used as an example of transitional ideal- collective decision-makers are selected through ism while the National Peace and Reconciliation fair, honest and periodic elections. Commission (NPRC) will be used as an example Teitel (1997) was therefore correct in charac- of transitional realism. terising the manner in which transitional realism Both transitional realism and idealism are not relates to the law as ‘settled and unsettled, back- suited to bring healing and reconciliation to Zim- ward-looking and forward-looking, disclaiming babwe because of the distrust which the popu- past illiberal norms while reclaiming future liber- lation has for the judiciary. This institution has al ones’ (Teitel 1997: 2015). According to transi- been cast as a willing instrument of the state. tional realism, through the process of transitional According to Badza (2008: 5): jurisprudence, the law is constituted by borrow- Zimbabwe’s party-state system compromis- ing from previous experiences and using them es the fundamental democratic principle of sep- to predict possible political trajectories in order aration of powers among the key arms of the to pre-empt any future gross violations of hu- state that include the executive, the judiciary man rights. For realism, the law is a pre-emptive and the legislature. The independence of the ju- mechanism that borrows from past experiences diciary has increasingly been compromised, es- to avert future human rights abuses. It is ‘set- pecially since the emergence of the opposition tled’ in that it applies continuously across the MDC in 1999. Its performance record during two regimes, ‘unsettled’ in that it is constituted the harmonised elections confirmed the lack of and reconstituted during the transitional period independence and autonomy of the judiciary. In (Naqvi 2008). It is this confused, unsettled na- fact, it is perceived to be unconditionally ac- ture of the law which appears to have induced countable to the executive, at the expense of citizens to seek alternative mechanisms to seek upholding the rule of law. The separation of pow- 208 EVERISTO BENYERA ers in Zimbabwe has seen real power being col- any well-meaning idealist or realist transitional lapsed into one arm, that is, the executive. justice mechanisms in Zimbabwe leaving com- With such a captured and distrusted judicia- munities and families to evoke everyday modes ry, prosecutions will always be treated with ca- of healing and reconciliation such as ngozi, giness if not disparagement by victims of hu- (avenging spirits), botso (self-shaming), chenu- man rights abuse in Zimbabwe. The state’s per- ra (cleansing ceremonies), nhimbe (community petual belittling and mocking of international and working groups, and nyaradzo (memorials) that regional justice mechanisms such as the ICC and are central to their particular cosmology (Beny- the Southern African Development Community era 2014: 335-344). Another complexity in the Tribunal (SADC tribunal) leaves the victims with transitional justice landscape in Zimbabwe is the no regional or international legal recourses, more presence of the political party accused of being so given the fact that Zimbabwe is not a signa- the chief benefactor of gross violations of hu- tory to the Rome statute and that it withdrew man rights in power. Thus ZANU PF, both as an from SADC tribunal in September 2009. In such organisation and as a collective of individuals, cases the constitution becomes the last hope severally and jointly is accused, one way or the for those who subscribe to transitional idealism. other, of perpetrating human rights abuses. This Indeed a new constitution was crafted for Zim- brings to the fore the challenges associated with babwe and came into effect on 22 May 2013 prosecuting a ruling political party, more so giv- when President Mugabe ascended to it. The en the well documented manner in which ZANU constitution has an array of provisions to up- PF controls the other arms of the state especial- hold human rights such as Chapter 12, Part 3 ly the judiciary which is central in any prosecu- which provides for the Zimbabwe Human Rights torial transitional justice process. Under these Commission, Part 6 which provides for the NPRC circumstances genuine healing and reconcilia- and Chapter 13 Part 2 which provides for the tion in Zimbabwe is only achievable through National Prosecuting Authority. These are well the use of broader realist transitional justice meaning entities which unfortunately operate mechanism. These mechanisms need to origi- within a poisoned and divided political environ- nate from the communities and epitomise com- ment. As long the judiciary remains subservient munity agency in seeking a particular healing to the executive, whatever happens at the lower and reconciliation modicum which speaks to levels is immaterial in terms of healing and rec- their peculiar historical human rights abuses. onciling Zimbabweans. Non state transitional justice mechanisms are The state’s obsession with what Ndlovu- thus proposed as the most viable means of mak- Gatsheni and Benyera (2015: 5) termed a para- ing substantial strides in the otherwise stagnant digm of war which refuses to die and perpetual- healing and reconciliation processes in Zimba- ly stifles any well-meaning realistic or idealist bwe. The main reason of this is that the wronged transitional justice mechanisms is a worrying are the best people to ascertain how they want fact. They noted that: to be healed and how they intend, if they intend, A paradigm of war refuses to disappear in to reconcile with their abusers. This is in direct Zimbabwe and Chimurenga emerges as the prime contrast to idealist transitional justice mecha- and most preferred solution to most national nisms which put the accused state as both the questions. Zimbabwe has just emerged from a engineer and main implementer of transitional violent Third Chimurenga that was used to re- justice mechanisms, notwithstanding that the solve the land question. Closely tied to the ide- very state is the prime accused of perpetrating ology of Chimurenga is the practice of gover- and benefiting from human rights abuses. nance through military operations. This has re- sulted in a society that was permeated institu- CONCLUSION tionally by militarism and violence. This creates more healing and reconciliation challenges This paper discussed the application of Ruti while leaving previous ones unresolved (Ndlo- Teitel’s transitional idealism and transitional re- vu-Gatsheni and Benyera (2015: 5). alism to post conflict/authoritarian states. The Thus the state’s proclivity towards milita- former theory emphasises the supremacy of law rism and a chimurenga monologue (Ndlovu-Gat- while the latter stresses the supremacy of con- sheni 2011), emerges as the greatest threat to textual mechanisms that are sensitive to the pre- IDEALIST OR REALIST TRANSITIONAL JUSTICE 209 carious nature of political transitions. An alter- Bohl K 2006. Breaking the rules of transitional native, albeit broader, definition of transitional justice. Wisconsin International Law Journal, 24: 557-585. realism was also proposed. It consists of a broad Bradford JC 2010. A Companion to American Military range of bottom-up, victim-centred initiatives History. Chichester: Blackwell Publishing. taken by communities in an endeavour to seek Bratton M, van de Walle N 1997. Democratic Experi- reconciliation and lasting peace. Such broad ments in Africa: Regime Transitions in Compara- tive Perspective. 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