Tag Archives: Rwanda

A problem from hell for the 2010s

by Rhodri C. Williams

In listening to the Obama administration’s latest contortions on the ever-shifting red-line in the face of ever-clearer evidence of the use of chemical weapons by the Syrian regime, it is hard not to be transported back in time to another Democratic administration facing another problem from hell twenty years ago.

In 1994, it was President Clinton facing a similarly impossible red line in Rwanda, unable to publicly recognize the brute reality of what was happening on the ground because of the legal responsibility it would entail to intervene. As described here by the Guardian in 2004, it would take a decade for the obvious to become a matter of public record:

President Bill Clinton’s administration knew Rwanda was being engulfed by genocide in April 1994 but buried the information to justify its inaction, according to classified documents made available for the first time. Senior officials privately used the word genocide within 16 days of the start of the killings, but chose not to do so publicly because the president had already decided not to intervene.

Meanwhile, as the assault on moderate Hutus and any Tutsis continued, officials in Washington, D.C. were reduced to the demeaning sophistry of discussing formulations rather than condemning mass-murder. For a sobering  reminder, witness the agonies of State Department spokesperson Christine Shelly in April 1994:

In Rwanda, as in Syria, there were tremendous risks associated with intervention and little domestic political support for becoming bogged down in another sticky regional conflict. Indeed, in Syria, commentators are only beginning to awaken to the historical complexities that have shaped the region, providing a more accurate accounting of the difficulties that would face any intervention while at the same time feeding the risk of dismissive ‘ancient ethnic hatreds’ narratives of the type that arguably delayed a meaningful international response to the crises in the former Yugoslavia and Rwanda.

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Another UN peacekeeping meltdown in the make … but who’s got time?

by Rhodri C. Williams

Hat tip to Shane Quinn for forwarding me an alarming Guardian commentary by Simon Tisdall on the humanitarian meltdown presumably taking its leisurely course as I write this. An encampment of 60,000 wretched displaced persons “emptied overnight” in the face of an advancing rebel army covertly sponsored by neighboring states intent on natural resource extraction. The UN deeply committed to a corrupt and abusive national army that is melting away along with the displaced. Some peacekeepers futilely attacking the rebels from helicopters as the rest nervously wait for them to arrive.

Its Goma, in eastern Democratic Republic of Congo (DRC). But how is anyone supposed to keep track right now, with Syria and now Gaza and everything else, like the inundation of Haiti and destruction of its food for next year completely overshadowed. And anyway, eastern DRC is the emblematic basket case, if its been this bad for this long, how could it get worse? If you want a vision of the depths of human misery and debasement, look at the situation there four years ago. What could change?

What worries me – beyond the profound waste of it all – is the UN being up to its neck in this. Monusco is a party to a conflict most people couldn’t locate on a map let alone understand, with a long hangover from the Rwandan conflict, the transplantation whole of one of the world’s most vicious rebel groups from Uganda, and natural resources galore to fuel and pay for people’s indulgence in their worse instincts, seemingly until the end of time. And all this at a time when the UN is still reeling from having failed – profoundly – to take steps that might have saved at least some of the 40,000 civilians mown down in 2009 during the final stages of the war in Sri Lanka.

So maybe Goma will be the next public failure of the UN, ironically taking place just a few miles away and a bit shy of two decades after its first great post-Cold War stagger in Rwanda, in 1994. Or maybe it won’t. Negotiated resolution, withdrawals, resumption of the miserable status quo. At times like this, I can’t even formulate the questions, let alone think of the answer.

Understanding the outcomes of customary justice: implications for land practitioners

by Erica Harper

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”. Continue reading

Avoiding conflict through early and effective management of land disputes

by John W. Bruce

The last decade or so has seen growing recognition of the major role played by competition for land in generating conflict. However, the often extremely complex and embedded nature of such conflicts—and associated political sensitivities—is such that both international and national actors have in many cases shied away from fully engaging with them. In other cases, forms of intervention have not always sufficiently taken into consideration their major—and potentially recurring—causes. The challenge is to better understand the role played by land, combined with related factors, in the generation of conflict—both in terms of the conditions that create a vulnerability to conflicts and events that tend to trigger violent conflict—as a basis for preventing or de-escalating violence.

I had worked on land issues from a development standpoint in Mozambique, Sudan and Cambodia, but a 2009 study in Rwanda for the Overseas Development Institute and follow-up work with UN-Habitat made me aware that the humanitarian community working in peacebuilding contexts had developed new ways of looking at land conflict and useful short-term approaches for addressing it. The land tenure in development community had little knowledge of these and often saw land policy and administration exclusively through an economic development lens. At the same time, those in the humanitarian community working with post-conflict land issues lacked familiarity with the role of land tenure in development processes and sometimes did not appreciate what was needed to lay the basis for sustainable, sound land governance.  These bodies of understanding and differing perspectives about land issues had not been integrated-an integration that is essential to the development of effective strategies for prevention and mitigation of land-related conflict.

With these challenges in mind I agreed to work with the Initiative on Quiet Diplomacy (IQd) to develop a handbook on Land and Conflict Prevention The handbook is one of a series providing third party actors with practical guidance in addressing issues that are frequently the sources of tension before violent conflict (re)erupts. IQd’s approach to me coincided with a train of thought that began when I worked with UN-Habitat on post-conflict land issues. I was struck by the fact that the valuable thinking that had been going on in the post-conflict context needed to be walked back through time, as it were, into the pre-conflict period, asking “What do we know about land and conflict that can be mobilized for prevention?” The result is a blend of ideas and practical guidance for preventing land-based conflict drawn from both the post-conflict and developmental contexts.

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Land, power and identity in complex cross-border areas: Eastern DRC

by Chris Huggins

Around the world, there are a number of international border areas where governance is fuzzy and disputed, citizenship claims are complicated and contested, and economies are trans-boundary in nature. Due to the arbitrary nature of colonial boundary making, ethnic communities are divided by borders, so that loyalties as well as livelihoods are trans-national in character. Illegal resource extraction is endemic, and fortunes are made by the ruthless, even as the majority wallow in poverty. Many such complex border areas are either already in a situation of violent conflict, or at risk of conflict. Examples which have seen violence in recent decades include the Afghanistan-Pakistan border, the Thai-Cambodia border, and the Chad-Darfur border.

Geographical remoteness is one factor: such areas are physically far from capital cities, and there are often cultural differences between local communities and dominant elites in urban areas. The inhabitants are therefore seen as slightly ‘different’ from other regions, and often viewed with suspicion by the state. Due to this geographical remoteness, land is often under held under customary systems rather than the state land registry, and due to the frequency of cross-border movements, land rights can be disputed, as the citizenship of those claiming land and resources are disputed.

The Eastern border of the Democratic Republic of Congo (DRC) is one of these complex and challenging borderlands that is emerging, slowly, unsteadily and precariously, from violent conflict. The history of the DRC is a complex and largely tragic story, too complicated to summarize here. In terms of recent events: during and since the ‘two rebellions’ of the 1990s, which were largely engineered by Rwanda, Uganda, and other regional countries, the country (especially the East) has seen massive bloodshed, some of which is described in Shane Quinn’s recent guest posting on TN. The security situation started to stabilize across most of the country in the mid-2000s as a result of a sequence of peace negotiations. Nevertheless, parts of the East, especially North Kivu Province, remained unstable. While most non-state armed groups engaged in the peace process and were integrated into the government, several groups refused to integrate, and maintained de facto politico-military control over significant swathes of territory.

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Regional advocacy on the UN human rights mapping exercise in the Democratic Republic of Congo

by Shane Quinn

With the focus on North Africa these days, it’s a little difficult to sway observers of human rights issues to other pressing situations such as that of Democratic Republic of Congo (DRC). After all, DRC has received its fair share of analysis over the years from human rights and rule of law to humanitarian and peace-building perspectives, and yet this conflict continues to bubble accompanied oftentimes by horrendous mass rapes and internecine massacres. DRC has become synonymous with a deficit of accountability and lack of recourse for victims of grave human rights abuses.

So how then, will the recently published UN Mapping Exercise on Grave Human Rights Abuses from 1993-2003 manage to establish some long awaited justice for the many victims of its wars? With great difficulty, is the proverbial answer. Although the report succeeds in pointing out the roles and responsibility for human rights abuses of different actors including the Congolese state and its neighbours in the region, the latter have effectively dismissed the report as groundless. The Rwandan government in particular has been highly critical of the mapping report and related lobbying and advocacy activities of civil society organizations (CSOs) in DR Congo and Rwanda, directly questioning the UN’s mapping methodology and referring to the content of the report as lies.

The Human Rights in Ireland blog gives a very balanced overview of the expectations on the mapping report, while also dampening the expectations felt by many civil society actors within the DRC and the Great Lakes. The fact of the matter is that this mapping report – while initially shaking the regional status quo by accusing Rwanda and Uganda amongst other countries of grave human rights abuses – has failed to ignite a regional push for greater accountability by either civil society or international actors.

It is early days of course, and only three months have passed since the publication of the report, but already plans are being laid for the elections in DRC in June 2011 and the mapping has not been mentioned as a central issue of any electoral campaign. Instead, the danger is that it assumes a similar fate to prior human rights reports conducted in Timor Leste and Sudan, which attracted little more than a passing glance by the international community. The worrying proof is also in the lack of hits on the internet since the publication date of 1 October last year. Having waiting for this report to be published, maybe civil society actors in the region can now start communicating across the region’s borders and try to establish some momentum before the elections.

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Chris Huggins on the significance of the “Endorois Decision” for Kenya and East Africa

by Chris Huggins

The decision of the African Commission on Human and Peoples’ Rights on the land rights of the Endorois minority will have a significant impact within Kenya and the wider East African region.  The timing of the decision means that a number of crucial ongoing legislative and political projects within Kenya will have to take the decision into account. These include the approval of the draft land policy, which states that the government will “establish mechanisms to resolve historical land claims arising in 1895 or thereafter”, and makes provision for new legal categories of land to be established, including “community land”. This revolutionary provision would lead to the demarcation and recognition of land customarily owned and used by particular communities. The draft Land Policy proposes so many fundamental changes to the land tenure system that a key issue will be the sequencing and financing of the process of drawing up regulations and establishing institutional mechanisms for the implementation of the Policy. Perhaps the decision of the African Commission will lead to increased focus on the aspects of the Policy which touch on the rights of indigenous communities in the country.

One of the other processes on the horizon is the Truth, Justice and Reconciliation Commission (TJRC), which was established following the 2007/2008 post-election violence. By the terms of the power-sharing agreement that ended the post-election violence, the TJRC is mandated to enquire into human rights violations, including community displacements, settlements, evictions, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.  This is because land-related grievances are one of the root causes of the recurrent political violence in Kenya. A short background piece on this is included in an online forum hosted by Oxford University. However, since that piece was written, it has become clear that there is little appetite in Kenya for the TJRC, due to concerns that it will be yet another expensive process which results only in a set of reports gathering dust on a shelf. The Kenyan state has a very poor record when it comes to implementing the recommendations of commissions on key issues such as land and justice. Nevertheless, the African Commission decision is likely to increase a focus within the TJRC on land issues, which may have some positive results, albeit in indirect ways.

The drafting of the constitution, a marathon process that has been bound up in cynical and divisive political horse-trading and gamesmanship, remains an important project for the near future. The current draft includes some principles which are echoed in the draft Land Policy. As Kenya comes closer to the 2012 election, the constitutional wrangles become more important and politically-charged. It is to be hoped that the debates on the provisions on land in the constitution will focus on the needs of the most vulnerable landless groups. Some other indigenous communities in Kenya are described below.

Indigenous Groups and Land Claims in Kenya

The Endorois are not, of course, the only community in Kenya with land claims related to forced displacement, and several other groups likewise claim indigenous identity. The Masaai are the best-known indigenous community, with long-standing grievances related to colonial-era displacements. These have thus far been oriented towards the British government, rather than the Kenyan state, but it is possible that the African Commission decision might prompt a change of tactics. The Ogiek are another group who have engaged in an organized struggle to regain their land rights. After being evicted from their forest homes in Rift Valley Province during colonial times, and seeing this dispossession further entrenched after independence, they filed a suit in the High Court in 1997. However, in 2000 the High Court ruled that the evictions were legally justified due to the need to conserve the forest, and questioned the Ogiek community’s ability to inhabit and manage the forest in sustainable ways, as their lifestyles and livelihood strategies had altered from those customarily practised. This ruling should also be interpreted, of course, in the wider Kenyan context: the judiciary has rarely ruled against government interests.

Another colonial-era dispossession in the vicinity of Mt Elgon in Western Kenya eventually resulted in a violent contestation over land, as documented in several reports, including this one by Human Rights Watch. The displacement of Sabaot communities in colonial times was followed by several post-independence attempts by the Kenyan government to resettle other communities around Mt Elgon, in a manner marred by corruption. Some communities claim indigenous status as Ndorobo, originally a derogatory term applied to people who had lost their livestock and were seen as poor. Over time, tensions around land escalated and by the early 2000s armed militias had formed, most notably the Sabaot Land Defence Force. Local politicians’ alliances with armed militias led to worsened violence following the disputed 2007 elections in Kenya.

In March 2008, the Kenyan army was mobilised in the Mt Elgon area, allegedly killing dozens (perhaps hundreds) of civilians and torturing others. This heavy-handed response was prompted by political factors and also reflects the government’s tendency to apply a ‘security’ lens to problems which have a more complex set of socio-political roots. The tensions around land are likely to reoccur on the slopes of Mt Elgon unless a committed effort is made to address community concerns even-handedly. However, even with the African Commission decision pushing the government to address indigenous land claims, it is unlikely that a concerted effort will be made prior to the 2012 general elections. Already, the eviction of squatters within the ecologically-significant Mau forest complex has threatened to split some political alliances. Leading politicians may see an attempt to address the Mt Elgon problems as too costly an investment for a distant and politically marginalized constituency in Western Kenya.

The distribution of land in the Coast Province of Kenya is particularly unequal. Along the ten-mile-wide coastal strip, the colonial regimes recognised the claims of the Sultan of Zanzibar, at the expense of those he had controlled through force of arms and economic might. Only his ‘subjects’ could register land. This meant that up to 25% of the local population were turned into landless ‘squatters,’ unable to register the land that they had lived on for generations. Successive governments have provided resettlement schemes for local people, but these have sometimes benefitted ‘outsiders’ with political connections or enough money to bribe the officials involved. There remains a high degree of landlessness and ‘squatting’ at the Coast, amidst the high-end luxury of the tourist trade. Though the Mijikenda tribes of the Coast are not usually categorised as ‘indigenous’, the African Commission decision is likely to re-ignite local calls for redistribution that may be heeded, at least in part, given the economic significance of the Coast and the potential for political violence there in 2012. Of course, it should be remembered that election violence is usually mobilized and financed by politicians; there are some, therefore, who would enter the debate with ulterior motives.

Regional Effects – The Batwa in Rwanda

The Batwa (also known simply as Twa) are located in Uganda and parts of Eastern Democratic Republic of Congo, but their situation in Rwanda is perhaps most precarious due to a history of discrimination and government refusal to accept the concept of indigeneity. As discussed in this report for the Forest People’s Programme, the status of the Batwa as indigenous is acknowledged by the Rwanda population and by scholars, but is denied by the government.  The sensitivity of the issue relates to the Rwandan genocide, and specifically the targeting and stereotyping by Bahutu extremists of the Batutsi as ‘foreigners’ who originated elsewhere (and hence, according to this twisted logic, should be expelled or killed). However, it is important to understand that a country’s population may be comprised of groups that have all migrated to the territory at some point in the past and such immigration in no way affects the rights of citizens.  Nor does the presence of an indigenous population – either in the sense of the first occupants or as distinct cultural collectivities that self-identify as such – negate or otherwise impair the rights of citizenship.

The Batwa are generally recognised as the earliest inhabitants of what is now called Rwanda. Prior to the development and expansion of the centralized Rwandan state, control over land used for agriculture or grazing was essentially obtained from the act of clearing that land. When land had been used previously by Batwa, the clearers of the land gave the Batwa small payments to acknowledge the previous claim of the Batwa to the area. By the early 19th century, many Batwa had been forced out of their forest habitats due to a combination of deforestation by farmers and the socio-political ascendancy of the other ethnic groups in the country. Over time, most Batwa were to some extent incorporated into wider Rwandan society, albeit in a marginal position. However, some Batwa remained on the peripheries of society, inhabiting the remaining forests.

The Batwa self-identify as a minority, and were identified as ‘Twa’ on national identity documents until ethnic differentiation on these cards was abolished after the genocide. They also retain a great number of songs, dances, oral narratives and other cultural artifacts which clearly signal their Batwa identity. The Batwa therefore meet all four of the recommended principles to be taken into account in any possible definition of indigenous peoples, as put forward by the UN Working Group on Indigenous Populations. A 2004 survey of Batwa land ownership found that 43% of households were landless, compared to a landlessness rate of 12% within the general population of Rwanda. Of those Batwa households with land, 46% own less that 0.15 hectares. According to recent data, about 40% of the Batwa community members now rely on begging as their primary source of livelihood.

During the colonial period, the Government enacted legislation to restrict access to areas of primary forest, putting in motion a process of exclusion which eventually culminated in Batwa communities being completely prohibited from continuing to live, hunt, or gather products found in the forest areas. Following independence, some Batwa families lost land at the hands of corrupt local authorities. Others, caught in a general process of impoverishment, sold land at give-away prices in order to buy food or medical supplies. Batwa land was not only expropriated through local mechanisms, but also on a larger scale. The First and Second Republics established protected forest areas from which Batwa inhabitants were evicted. The Batwa hunters of Nyungwe area were evicted from the forest in 1988 when it was re-classified into a National Park and military training zone. Some 4,500 Batwa living in Gishwati forest and what is now the Volcanoes National Park were evicted from these areas by the 1990s. The Batwa were not consulted before or during the evictions, nor did they receive compensation or assistance with resettlement.

Ethnic discourse has been essentially criminalized in Rwanda, and Batwa rights organizations have been unable to use the term ‘indigenous’. Article 33 of the Constitution states that, “Propagation of ethnic, regional, racial or discrimination or any other form of division is punishable by law.” The text of the law on ‘divisionism’ is very broad, to an extent that it risks violating constitutional equal protection and freedom of expression guarantees. While the Rwandan Constitution does not explicitly mention the Batwa, it does refer to ‘historically marginalized Rwandan communities,’ a phrase which was generally understood during the constitution-making process to refer to the Batwa. However, since the Constitution was promulgated, members of the government have claimed that the Batwa are not included in this category.

As observed by the Eminent Panel of the African Peer Review Mechanism (APRM)’s report on Rwanda, “the approach adopted by the authorities was based on a policy of assimilation. There appears to be a desire to obliterate distinctive identities and to integrate all into some mainstream socio-economic fabric of the country.” Following the publication of the APRM report, the government has recognised that the Batwa need special assistance, but has yet to acknowledge that the Batwa continue to face institutionalised discrimination or to give them a clear legal status. With African commentators complaining about the weakness of the APRM process, perhaps the recent African Commission ruling will encourage a more rigorous process of monitoring and follow-up. As yet, however, and perhaps because of their marginal socio-economic and legal position, the Rwandan Batwa claims have not been asserted in any legal forum.