The first briefing will be hosted by the Centre for the Advancement of Non-Racialism and Democracy (CANRAD) at the Nelson Mandela Metropolitan University (NMMU) in Port Elizabeth, and will focus on Governance, Economic Performance and Institutional Trust in the Eastern Cape. Find yourself in PE on 1st March? Please come and join us!

Date: 1 March 2012

Time: 17.30 for 18.00 until 20.00

Venue: Conference Centre, North Campus, Nelson Mandela Metropolitan University

RSVP: Ms Sadiya Adams, Sadiya.Adams2@nmmu.ac.za or (041) 504 4390

Light refreshments will be served from 17.30. The next briefing will be held in Johannesburg on 14 March – details to follow!

• Income inequality the ‘most divisive’ Donwald Pressly, Business Report, 19 February 2012
• Lowest earners likeliest to lose jobs SAPA, 16 February 2012
• Class overtakes race as most divisive factor in SA, says IJR Report West Cape News, 16 February 2012
• Leaders blamed for growing inequality Neo Maditla, Cape Argus, 16 February 2012

To have a look at the blog and download the full report, click here.

UCT unit calls for new legislation to replace Traditional Courts Bill
9 February 2012

UCT’s Law, Race and Gender Unit (LRG) has called for new legislation to replace the controversial Traditional Courts Bill.

Introduced by government in 2008, the bill was withdrawn from the National Assembly last year after pressure from opponents. Its imminent reintroduction in the National Council of Provinces (NCOP) was announced in mid-December, giving rural people two months to submit their comments by 15 February.

LRG is working with the Legal Resources Centre and local community-based organisations to ensure that people living in rural villages will have an opportunity to speak out against the proposed passage of the Bill, which is considered unconstitutional by legal experts. A consultative workshop involving 100 rural delegates from different provinces came together in Johannesburg in January to discuss the bill and the way forward.

LGR has proposed that new legislation should be drafted, based on the views and needs expressed by ordinary rural people in the process of their consultation. The unit established the Rural Women’s Action Research (RWAR) project to support rural communities, especially women, who live under systems of customary law and traditional governance.

RWAR has played a key role in educating rural people about the Traditional Courts Bill. It has also helped many rural communities and groups to make submissions directly to Parliament on the proposed legislation.

LRG director Associate Professor Dee Smythe said the approach taken by the RWAR project provided an opportunity to build models of practice in legislation that are inclusive and participatory.

The project is one of the recipients of the 2011 UCT Distinguished Social Responsiveness Award, established by vice-chancellor Dr Max Price to promote the university’s commitment to social responsiveness.

Tabling of the bill took place on 26 January 2012 after which members of the select committee took it to their provinces for rural consultations. Once the NCOP has made amendments and a decision about the bill, it will return to the National Assembly.

Dr Sindiso Mnisi Weeks, a senior researcher in RWAR, said many rural people were not aware of the pending bill, nor were they consulted about how it would affect them.

“The bill would centralise power with traditional leaders, and would allow them to singlehandedly decide a dispute,” she said. “It was drafted in consultation with traditional leaders only.

“As the bill now stands, women in particular would be affected, because they would not be assured of their right to self-representation. Should a woman’s husband die, she would not be protected against those who would want to grab her property.”

Limpopo community leader Patric Mashego is one of the rural people working with the RWAR to oppose the Traditional Courts Bill.

“This bill and laws such as the Limpopo Traditional Leadership and Institutions Act destroy the dream we fought for over many years. Instead of making rural people equal citizens in a unitary South Africa, they make us subjects of chiefs who are given the coercive power to get rid of those who try to hold them to account. You may say that not all chiefs are bad. That is true, but only bad chiefs need laws like this.”

Mashego said the bill would create a crisis around the issue of tribal levies.

“We are experiencing a serious problem with tribal levies and the bill will make the problem into a serious crisis if it is enacted.”

Aninka Claassens, the RWAR project leader, added: “If people don’t pay those levies, traditional leaders refuse to give them the proof of addresses that are necessary in applications for identity documents, pension and child grants.”

ALLAN NGARI

In January 2012, the ICC’s Pre-Trial Chamber II confirmed criminal charges against four Kenyans for bearing the greatest responsibility for the death of 1,100 civilians and the displacement of approximately 600,000 in the violence immediately following the disputed election results in December 2007.

Summaries of the long-awaited decisions were concurrently read out on 23 January 2012 by the presiding judge Ekaterina Trendafilova. She confirmed charges against Uhuru Kenyatta (Deputy Prime Minister, Minister for Finance, son of the Kenya’s first President and currently a presidential aspirant), Francis Muthaura (Head of Kenya’s Civil Service and Secretary to the Cabinet), William Ruto (suspended Minister for Agriculture and currently a presidential aspirant) and Joshua Sang (journalist) for potentially having committed crimes against humanity either as indirect co-perpetrators or as contributors to the crimes.

Two suspects, Major General Mohammed Ali, the former Commissioner of the Kenya Police and Henry Kosgey, suspended Minister for Industrialization, were not charged.

Under the provisions of the Rome Statute, the ICC Prosecutor, Louis Moreno Ocampo can seek further charges against the suspects based on additional evidence. Following the Court’s ruling, Ocampo stated that he will not appeal the “good decisions”, but will continue to collect factual evidence against Ali and Kosgey.

The decisions have generated interest and controversy partly due to the fact that the ICC is also intervening in a number of other African countries.

A recent study noted that 64% of Kenyans expressed support for the ICC process. Of this group, a majority observed that the ICC intervention marked the end of a culture of impunity that has long been the preserve of Kenya’s leaders.

Prior to the delivery of the decisions, there were speculations in the country on what the outcome of the confirmation of charges hearings would mean for the country. Two of the suspects, Uhuru Kenyatta and William Ruto have declared their interest in contesting for Kenya’s presidency in elections expected to happen anytime between December 2012 and March 2013.

The ICC’s Spokesperson, Fadi El Abdallah clarified that it is up to the Kenyan law and relevant institutions dealing with elections and not the ICC to determine the eligibility of any of the suspects to vie for public office. Uhuru and Ruto have since declared that the ICC decisions will not bar their intentions to vie for the top job in the country. The majority of Kenyans are expressing the view that criminal charges against a public officer or one who seeks public office goes against the spirit of the new Constitution of the Republic of Kenya, specifically Chapter Six which makes reference to the integrity of leaders in public office or seeking such office.

The ICC Chamber has decided not to order the detention of the four accused. According to Chamber, they however have to refrain from interfering with victims and they are also prohibited from engaging in hate speech or conduct that may incite the Kenyan population to violence.

While the ICC Pre-Trial Chamber has confirmed the charges against four of the suspects, many victims of the post-election violence find that the trial of four men is insufficient to redress the injustices generally occasioned to them. The victims of the post-election violence are confined to the internally displaced persons’ camps remain deprived of the enjoyment of their right to liberty because they cannot return to their homes. There are many perpetrators of the violence walking freely in Kenya and victims are calling for justice in Kenya.

The President of Kenya, Mwai Kibaki requested the Attorney General to advice the government on a way forward, the Attorney General has swiftly advised the setting up of a division within the High Court for purposes of bringing to account those responsible for the post-election violence. This is a victory for victims who may then enjoy their right to justice for the harm they have suffered. It also brings post-election violence victims closer to accessing reparations although at present there is no reparations policy in Kenya to guide a reparations programme that meets the stringent requirements of international law.

What is clear from the ICC interventions is that politics in Kenya is not business as usual, particularly as the country edges towards its elections. The norm during elections was the ethno-politicization of issues and alliances forged along ethnic lines often to the detriment of ‘lesser’ ethnic groups and the politics of violence against such groups as a tool to intimidate. Once state power has been clinched, the human rights abuses of these groups are never redressed but entrenched through further marginalization by the new state machinery.

Some of the now accused individuals have declared their intention to appeal against the majority decision of the Pre-Trial Chamber. This will delay the commencement of their trials. At the trial stage, Kenya has yet another opportunity to challenge the admissibility of cases.

Ocampo estimates that following the announcement by some of the accused to appeal the recent decision, the trial(s) would only commence towards the end of 2012 or at the beginning of 2013, coinciding with presidential campaigns in Kenya. Ocampo, whose term in office as ICC Prosecutor expires in June 2012, says that the situation in Kenya is an example for the world of a country managing its transition to democracy and the rule of law. Ms. Fatou Bensouda of The Gambia was elected by consensus in December 2011 by the Assembly of States Parties to take over as ICC Prosecutor. The interplay between the law and politics will take centre-stage with an African Prosecutor, leading the prosecution of cases before the ICC, which has been criticized mostly by the African Union itself for focusing its attention on the African continent to the exclusion of other pressing situations in other parts of the world. The ICC’s interventions in Kenya provide lessons for other countries where political process have led to the violence and human rights atrocities.

Allan Ngari is a Project Leader of the Kenya and International Justice Desk at the IJR. This article appeared in the Cape Times on 31 January 2012.

Foreign Policy: Making Up Is Hard To Do

The pursuit of national reconciliation came under significant pressure in 2011.The controversy around the wording of amendments to the Employment Equity Act, the Julius Malema hate speech trial, the reactionary response of several predominantly white organisations to Desmond Tutu’s call for a tax on apartheid beneficiaries, and Eric Miyeni’s racialised attack on City Press editor Ferial Haffajee, all reflect that much more needs to be done to create platforms where non-threatening conversations can shape social cohesion and inclusive outcomes. At best, the current status of the national reconciliation project is one of ‘unfinished business’.

Today South Africans commemorate the 17^th National Day of Reconciliation, but many are unsure of the prospects for true reconciliation. According to the 2011 round of the SA Reconciliation Barometer Survey, conducted annually by the Institute for Justice and Reconciliation (IJR), 59% of South Africans feel that the country has become more reconciled since 1994. Just less half (47%) feel the TRC succeeded in bringing about reconciliation. However, only 36% agreed that they have personally experienced any form of reconciliation in their own lives. 22% noted that they have not, and the remainder were uncertain whether their experiences merit the term ‘reconciliation’. The latter finding – uncertainty about what the term really constitutes – may be telling in itself.

The fact that so few South Africans have personally experienced reconciliation in their own lives is indicative of two things. The first points to a finding in this year’s survey that the vast majority of South Africans are not socialising, or have never socialised, across the barriers of the country’s historically-defined racial categories. According to the 2011 SARB results, less than one-fifth of all South Africans (18.7%) regularly socialise with people they view to be of another race group. An additional one-fifth (20.6%) do so sometimes, and 59.1% rarely or never do.

We do seem to gather in neutral spaces during big sports events like the Soccer World Cup, but quickly retreat to comfortable, homogenous and racially-defined spaces once the party is over. The results show that more than half of all South Africans (55.3%) agree that they find the ‘ways and customs’ of other groups difficult to understand, and one-third (34.1%) that they do not trust them.

The expectation of social discomfort or a lack of commonality seems to be a profound deterrent to efforts to increase socialisation. One of the IJR focus groups participants, a professional woman, describes her experience after having been invited to the home of a neighbour from another group as follows:  ‘I sat there, we talked about the kids and the weather, but there is nothing else to talk about, you are so afraid to talk about things’. The survey data seem to confirm this sentiment. Most South Africans feel safest in identity-based groups, defined either by race, language and ethnicity. The choice of these intransigent categories, above association on the basis of a common South African identity, give credence to such observations.

Our unwillingness to move outside our own exclusive groups serves to reinforce the typical stereotypes we have about the ‘other’. Our constitution has provided the context for tolerance, and as a result most South Africans would today frown upon blatant racism. But tolerance far from enough for reconciliation. People like Prof. Jonathan Jansen highlight the need to acknowledge and accommodate other narratives and to move away from the stereotypes of ‘perpetrator’ or ‘victim’. This, of course, will require the creation of more inclusive safe spaces where we can listen and share our experiences. These spaces must offer individuals the safety to confront their own prejudice, but also to reach out without the cynicism that often accompanies attempts to breach historical divides.

These efforts will however be in vain if we do not address the material indignity that apartheid has inflicted amongst the majority of citizens.  Consecutive rounds of the survey have found that, when prompted to identify the most divisive feature of our society, the majority have pointed to the material inequality between rich and poor South Africans. Thirty-two per cent (32%) of South Africans feel that the gap between rich and poor represents the single biggest source of division in the country, followed by political party membership (22%) and race (20%). Forty-six per cent (46%) believe reconciliation is ‘impossible’ for as long as people who were disadvantaged under apartheid continue to be poor. Regardless of this, 66% still believe that national unity is a desirable goal for the country to pursue.

As we move further away from the moment of birth of our democratic dispensation, it should become increasingly apparent that mere gestures of tolerance are not enough. They do not provide the better life that many have fought and died for. Racial integration may be an ultimate objective, but this will never materialise in the absence of economic inclusion.  This day should – above anything else -serve to create more momentum towards addressing this unfinished business of our transition.

Nyoka is the project leader of the Institute for Justice and Reconciliation’s Inclusive Economies Project. A version of this article appeared in the Cape Times on 16 December 2011.

No 1: Sequencing the administration of justice to enable the pursuit of peace Tim Murithi

No 2: On Corruption in South Africa Lucía Tiscornia

No 3: L’opportunité de la mise en place de la Commission Vérité et Réconciliation au Burundi (Opportunities for setting up a TRC in Burundi)(English summary) Astère Muyango

No 4: Taming the demon of Kenya’s election violence Alice Nderitu

Briefs 5 and 6 will be out shortly!