Immunity Cannot Allow Impunity

African leaders want to exempt themselves from prosecution for terrible crimes -- but new research shows their people aren't as forgiving as they might think. 

This March, as mediators scrambled to arrest the devastating civil war in South Sudan, a coalition of the country's civil society organizations wrote a letter to the Commission of Inquiry on South Sudan, a body established by the African Union to investigate crimes committed since violence engulfed the world's newest country in December 2013, insisting that those responsible for the atrocities be held to account. "Men and women in positions of authority and those in uniform have committed serious crimes on the assumption that they are absolutely immune from any accountability for their actions," they argued. There needed to be clear consequences for the widespread and often criminal behavior. "Accountability should form the bedrock of a new institutional culture in which all citizens are equal and subject to the rule of law."

Although South Sudan was the focus of the letter, the same point could apply to many of the brutal civil conflicts in Africa, where for every celebrated truth-and-reconciliation process -- South Africa's after the fall of apartheid being the most renowned -- many more wars end without any meaningful effort to pursue accountability and address the oft-criticized culture of impunity.

This is not a popular topic among African heads of state, most of whom are in Washington for the first-ever U.S.-Africa Leaders Summit, which officially begins on Aug. 4. Two sitting heads of state, Sudanese President Omar al-Bashir and Kenyan President Uhuru Kenyatta, have been indicted by the International Criminal Court (ICC) for their alleged roles in widespread violence in their countries, and they have repeatedly tried to mobilize fellow African leaders in opposition to the ICC. Others fear they could be targets of future prosecution for past indiscretions. Only weeks ago, African leaders voted to give themselves, along with "other senior state officials," immunity from prosecution by the yet-to-be-created African Court of Justice and Human Rights, designed to be an African counterweight to the ICC.

Some heads of state have argued that efforts at retributive justice -- such as the ICC -- are built on a Western model of justice and accountability, backed by Western funding and political support. Kenyatta went so far as to call the ICC a "toy of declining imperial powers." Outside interventions, these leaders argue, are contrary to the notion of African solutions to African problems and ignore traditional African practices of reconciliation and forgiveness.

This view was forcefully articulated this year by Thabo Mbeki, South Africa's former president, and Mahmood Mamdani, a Ugandan academic who is a member of the Commission of Inquiry on South Sudan. "There is a time and a place for courts, as in Germany after Nazism, but it is not in the midst of conflict or a nonfunctioning political system," they wrote in the New York Times. "Courts are ill-suited to inaugurating a new political order after civil wars; they can only come into the picture after such a new order is already in place." Mbeki and Mamdani argue that following extreme violence, "what we need is a political process driven by a firm conviction that there can be no winners and no losers, only survivors," and that "to call simply for victims' justice, as the ICC does, is to risk a continuation of civil war." A key lesson from the South African experience, they wrote, is that "it is sometimes preferable to suspend questions of criminal responsibility until the underlying political process has been addressed."

In instances of extreme violence, they argue, giving voice to a view held by many, restorative justice should take precedence over retributive justice.

Such blanket assertions, however -- in the direction of either restorative or retributive justice -- oversimplify matters. They also contradict preferences expressed by Africans in at least two counties. A poll by the Afrobarometer, a widely-respected effort to survey populations across the continent, was conducted in Mali in December 2013 to assess Malians' views on issues ranging from causes of the country's recent violence and instability to perceptions of democracy. The findings are stark:

On balance, Malians clearly prefer a retributive form of justice -- meaning that offenders would be tried and sentenced -- over a restorative form of justice -- meaning that victims would be compensated for their losses (64 versus 35 percent). In other words, most Malians are in no mood to forgive and forget; instead they seem determined to prosecute and punish. Of course, punishment and reparations are not mutually exclusive; they could be pursued simultaneously or in sequence. There is evidence in the survey that a mix of justice measures might eventually attract significant popular support. But, at least at the outset, the popular urge to deter the agents of violence takes priority over making sure that the casualties of conflict are made whole.

Also notable are the findings that nine out of 10 surveyed "insist that perpetrators of political crimes must be held accountable for what they have done" and that "almost half of all Malians interviewed prefer to keep any legal proceedings within the country: 47 percent want the national courts to hear human rights cases."

Another survey in Zimbabwe, which has been plagued by political violence for more than a decade, comes to similar, though more muted, conclusions. "The population is closely divided in a head-to-head comparison of retributive and restorative measures: whereas 45 percent attach most importance to putting criminals on trial, 44 percent would prefer to place the emphasis on compensating victims," wrote Michael Bratton, a professor at Michigan State University, summarizing the results in The Journal of Modern African Studies. He adds, "62 percent want to hold legally accountable those responsible for past crimes (who ‘should face the consequences for what they have done'), versus just 31 percent who favour amnesty (‘which means they would never be prosecuted')."

Mali and Zimbabwe are only two of the many African countries beset by civil conflict, and like every country have their own particular circumstances. But respondents to these polls echo the same sentiment as South Sudanese civil society: The response to mass violence cannot only be to look to the future and construct a new political order. Some combination of restorative and retributive justice should, under most circumstances, be considered. Efforts at retributive justice can sometimes be delayed, as Mbeki and Mamdani suggest, but not too long that they become ineffectual or impossible, or not in the interests of the next regime in power.

Mbeki and Mamdani knocked down a straw man in arguing that courts can't end civil wars -- they can't, but they're also not supposed to. Few people working to prevent, mitigate, and resolve violent conflict would argue only for courts as a solution. Courts are intended to provide some closure for the victims of mass violence and to deter future atrocities (whether international courts can do this is a matter of debate), but they are just one of many tools that can be used in a transitional justice process. Political processes are required to initiate a new political order, but those processes can co-exist with retributive justice processes -- they need not displace them.

Justice, and how to best carve it out in countries where many hands have been sullied one way or another, is likely to fall low on the agenda for the summit, which will largely focus on security and governance concerns and economic opportunities. But whether in Washington, at the African Union headquarters in Addis Ababa, or in the villages of South Sudan or Mali that have been razed to the ground, questions of how to achieve justice need to be discussed. Options for restorative and retributive justice have to be considered side-by-side. An overall transitional justice strategy should be flexible and tailored to the particular circumstances. Models that have worked elsewhere are useful, but don't always translate to a new context. Most importantly, the preferences of citizens -- not their leaders, who if complicit in the violence have their own narrow calculations -- should be paramount in deciding what combination of justice strategies to employ. If the people are yearning for accountability, the world needs to listen.

Jon Temin is director of Africa programs at the U.S. Institute of Peace.

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A Summit of Opportunity

Why Africa's rising economies are a win-win for U.S. business.

This week's U.S.-Africa Leaders Summit presents Washington with a historic opportunity not only for broad relationship-building but also for deepening its economic ties to the continent. It would be a mistake to assume that the benefits will all flow from the United States to Africa. There is huge economic potential in this gathering for the U.S. economy, too.

Africa is no longer just a continent in need -- indeed, it has become a place of opportunity. Investments from companies like GE and Caterpillar and other private investors such as Blackstone and Carlyle, at $130 billion in 2012, now surpass remittances and official aid as the largest type of capital inflow. Africa stands out for the relative youth of its people -- a potential demographic dividend. By 2035, the continent is set to have the largest working-age population in the world, larger than those of China and India, meaning that, for the foreseeable future, Africa will not face the potential drag on growth from shortages of labor that may be in prospect for other economies whose populations are aging.

But formidable challenges await African leaders, including bolstering education, creating jobs, and lifting more people out of poverty.

Still, the continent holds significant economic potential. African economies offer a higher rate of return on foreign direct investment than most emerging economies. Since 2000, the continent has been the second-fastest-growing region in the world; in 2012, the continent was home to six of the world's 10 fastest-growing economies. The continent's real GDP, at $2 trillion in 2013, was larger than India's and Russia's, and on par with that of Brazil.

But the United States has largely missed out on the economic opportunities Africa offers. Over the last decade, American foreign direct investment into Africa amounts to less than one-third that coming from Europe, and it also lags investment from the BRIC quartet of Brazil, Russia, India, and China. Meanwhile, U.S. trade with Africa is less than one-fifth the volume of its trade with Europe, and only 60 percent the level of China's trade with Africa.

Moreover, Africa's rising middle class offers U.S. businesses a huge, untapped new export market for their goods and services. Today, Africa's undoubted wealth in natural resources such as oil, gas, and minerals only accounts for one-third of the continent's GDP growth. But, as incomes rise, consumption is a gathering force in Africa. The continent is changing from one whose economic activity is centered on the export of natural commodities to one where domestic spending is playing a larger role. The continent is already home to nearly 100 million people who have enough income to spend on things they want rather than simply on things they need -- the basics such as food and clothing. By 2020, that tally is set to rise to 128 million, according to our research. This new consumer army will be spending a projected $1.4 trillion a year by then. More than half of African households will have discretionary spending power. Nigeria, now Africa's largest and most populous economy, will have 160 million people in consuming-class households, more than the current populations of France and Germany combined. African industries that cater to consumers will have estimated annual revenue in 2020 of $1.38 trillion, compared with $540 billion in the case of resources industries.

As Africa's trade ties with the world deepen, now is the time for the United States to get in the game. In 2012, the continent's flows of goods, services, and finance were worth $1.5 trillion, or 76 percent of GDP. Although commodities continue to dominate Africa's exports, there are distinct signs of Africa's trade rising decisively up the value chain. Exports of knowledge-intensive goods and services (which have a high R&D component or use highly skilled labor) are growing. Indeed, Africa's cross-border Internet traffic -- made up of everything from international Skype calls and email traffic to e-commerce and video streaming -- grew 70-fold between 2005 and 2013, faster than in China or Latin America, although it still lags behind the rest of the world.

Initiatives are already underway to deepen economic ties between the United States and Africa. One example is the Power Africa plan unveiled in 2013, an initiative to double the number of people with access to power in sub-Saharan Africa. Its aim is to enable public and private capital to expand power generation and electrify the continent. In its first five years, Power Africa offers more than $7 billion in financial support and loan guarantees. To date, that government investment has catalyzed more than $14 billion in private project finance. The summit could be an opportunity to expand and broaden this initiative, given that about 550 million people in Africa still lack access to power, according to the World Bank.

Another initiative is the African Growth and Opportunity Act, signed into law in 2000, aimed at offering incentives to African countries to open their economies and embrace free markets. Equally important will be measures to help the continent develop a new generation of business and political leaders, building on the Young African Leaders Initiative. One useful step for the United States to take would be to ease the path for more African students to attend universities and graduate programs; this may require looking carefully at current immigration rules.

But the United States shouldn't stop there. U.S.-Africa trade and investment should expand from its current focus on oil and other commodities to include trade in manufacturing and services. American companies have been slow to grasp the investment opportunities available in Africa beyond the natural resource sectors. For instance, the continent will need over $300 billion in infrastructure investment, an area in which U.S. companies can play a major role. Development-finance organizations need to think creatively about risk-mitigation mechanisms to give the private sector the confidence to invest in this dynamic market. New partnerships could be struck to develop Africa's efforts to boost skills.

For its part, African countries can do more to reach out to U.S. investors and help them navigate regulations and local customs. The summit is an ideal opportunity to explore this area and what can be done better. Many African countries -- from Angola to Zambia -- have set up dedicated investment agencies. Many, such as South Africa, also have public-private partnership agencies. Both of these are useful ways of enhancing engagement with U.S. businesses. African leaders should use the summit as an opportunity to hear any concerns -- macroeconomic, regulatory, or security-related -- from U.S. companies that may be preventing them from committing funds to Africa.

The historic Washington summit is an opportunity to address the relative lack of engagement with Africa on the part of the United States and the unevenness of economic development in Africa -- despite its enormous potential. Summits can too often be mere talking shops and photo opportunities. The importance of this gathering will only materialize with concrete action. Both sides have work to do.

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