Department of Public Law

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The Prosecution of International Crimes in Respect of the Democratic Republic of the Congo: Critical Evaluation of the Factual Background and Specific Legal Considerations
(2010) Materu, Sosteness F.
Since 1996 approximately 5.4 million citizens of the Democratic Republic of the Congo (DRC) have lost their lives as a result of the humanitarian crisis currently going on. Various warring ethnic groups have been committing terrible crimes against international law. War crimes and crimes against humanity such as rape, murder, recruitment of child soldiers and indiscriminate attacks on the civilian population have caused unspeakable suffering to civilians, especially in the eastern part of the country. Domestic institutions, the judiciary and the prosecution department, have not been able to address impunity because of being either in a state of total collapse or too weak to confront the strong warlords. As a result, when the International Criminal Court (ICC) became operational on 1 July 2002, the DRC authorities revived their desire to address the atrocities. Consequently, the crimes were referred to the ICC in 2004 and three DRC citizens are now undergoing trials at the ICC in two cases. The first part of this study evaluates the historical events that led to the referral of the DRC situation to the ICC. This includes the background of the conflict and the extent to which international crimes have been committed. Both regional and domestic attempts and initiatives to address the conflict are discussed, with specific reference to peace agreements and restorative justice mechanisms. The second part of the study deals with the prosecution of the perpetrators by the ICC. It examines the approach of the PreTrial Chamber to two legal issues, the principle of complementarity and modes of criminal participation as part of the ICC Statute. In this regard, the study makes a critical evaluation of two preliminary decisions confirming the charges against Lubanga, Katanga and Chui before the cases proceeded to the trial stage.
A Strained Relationship: Reflections on the African Union’s Stand Towards the International Criminal Court from the Kenyan Experience
(TMC Asser Press, 2014) Materu, Sosteness F.
This chapter comments on the current stand of the African Union towards the International Criminal Court, and on the AU’s position regarding the prosecution of incumbent African Heads of state before the Court. It analyzes how the African political elite, ordinary citizens and victims of crimes under international law view the International Criminal Court. In both cases Kenya is the main point of reference, because it has been in the center of the most recent critical positions taken by the African Union. Ultimately, it is shown that the current views of the AU Assembly about the International Criminal Court are not necessarily the views of Africans in general, and that the Court remains a relevant institution for Africa today as it was when it was established.
Criminal Accountability at Domestic Level
(TMC Asser Press, 2015) Materu, Sosteness F.
A state wishing to punish the core crimes under international law in its domestic courts can choose to follow two approaches. The first is to prosecute those crimes by relying on its ordinary domestic criminal law. The second approach is to prosecute them by relying on the structure of international criminal law as it is or as modified. The effectiveness of the first approach depends largely on how broadly or narrowly the domestic criminal law is structured, whereas that of the second approach depends, inter alia, on the practice followed in that state as regards domestication of international law norms so as to make them enforceable in the domestic courts. This chapter examines the two approaches in relation to the crimes against humanity allegedly committed in Kenya during the post-election violence, and evaluates whether Kenya has or could have utilized any of the approaches to effectively prosecute and punish the main perpetrators of these crimes. This discussion will provide a model for other jurisdictions, especially in the developing countries, that wish to address impunity for the core crimes in their domestic courts.
Alternatives and Adjuncts to Domestic Prosecutions
(TMC Asser Press, 2015) Materu, Sosteness F.
When a country decides to address past human rights violations committed on its territory, it has two options to pursue, namely retributive justice (prosecution) and restorative justice (non-prosecution) mechanisms. However, within the context of so-called “peace versus justice debate”, it is settled that whenever both mechanisms are pursued in a given transition, it is important to ensure that both peace and justice are achieved. This chapter focuses mainly on the Kenyan truth commission as one of the restorative justice mechanisms pursued as an integral part of the agreed domestic road map for accountability for the atrocities linked to the post-election violence. The chapter concentrates only on the aspects of the truth commission that have a bearing on criminal accountability for the crimes against humanity allegedly committed during the violence. It reveals that in view of the structure of the commission’s legal framework, there are both strong and grey areas with the potential of affecting criminal accountability positively or negatively.
The Kenya Situation Before the ICC
(TMC Asser Press, 2015) Materu, Sosteness F.
As part of the road map for criminal accountability for the post-election violence in Kenya, parties which were involved in the violence agreed categorically that the ICC’s intervention would be invoked if the agreed domestic judicial mechanisms failed. This agreement would appear to be evidence of a strong determination to break the “culture of impunity” which had become entrenched in Kenya as far as gross violations of human rights are concerned. However, when the domestic mechanisms actually failed and the ICC intervened, both legal and political “battles” ensued. This chapter addresses the legal issues relating to or arising from the Kenya situation before the ICC, covering four main areas. Firstly, it clarifies and examines the trigger mechanism employed; jurisdictional issues and the scope of the charges and ICC investigations. Secondly, it identifies and analyses contentious legal issues arising in relation to the definition of crimes against humanity and the principle of complementarity. Thirdly, it evaluates Kenya’s legal responses as well as political and diplomatic strategies and reactions to the ICC’s intervention. Fourthly, it examines the future of the ICC process in Kenya in light of Kenya’s 2013 presidential election results and other specific developments at domestic level.
The Post-Election Violence and Immediate Aftermath
(TMC Asser Press, 2014) Materu, Sosteness F.
In the aftermath of the 2007 general elections in Kenya, widespread violence erupted. Subsequent inquiries by various commissions concluded that serious human rights violations, some of which amounting to crimes against humanity, had been committed, and that Kenya was duty-bound to investigate, prosecute and punish those responsible. This chapter describes the various aspects of the violence, and analyses the findings and recommendations of such inquiries, the main focus being the nature of the ensuing crimes and the agreed road map for domestic criminal accountability. It shows that the attempts to create a special tribunal for Kenya, which was at the core of the aforementioned road map, failed, and that such a failure resulted mainly from the lack of a political will at the domestic level. Most of the political elite favoured impunity, thereby frustrating the initiatives to implement the road map. However, the perception of the Kenyan civil society organizations and ordinary citizens remained that the crimes must not go unpunished, and that to achieve this, the masterminds of the violence, mostly politicians, must be prosecuted by an externally controlled judicial process, preferably the ICC.
Background to the Post-Election Violence
(Springer, 2015) Materu, Sosteness F.
Literature indicates that the violence accompanying the 2007 general elections in Kenya was a spill-over effect of the country’s previous history, hence the need to scrutinize the historical antecedents to these elections. This chapter identifies and analyzes five factors, namely negative ethnicity, dictatorship, political alliances, criminal gangs and impunity, which, prior to the 2007 elections, had characterized the Kenyan politics. The chapter reveals that in view of the five factors, feelings had developed in Kenya, already before the 2007 elections, that certain ethnic communities had been deliberately marginalized since independence, while others had been highly privileged or favoured in different ways. This gave rise, inter alia, to a number of historical fears and grievances, mostly in relation to land. It is shown that this state of affairs became a recipe for election violence accompanying all the multiparty elections prior to 2007, and since the grievances were not addressed, and in view of the previous trend of election violence, it indeed became certain that even the 2007 general elections would not be free from violence.
The Post-election Violence in Kenya: Domestic and International Legal Responses
(Springer, 2014-12-04) Materu, Sosteness F.
Forced displacement and Conflict in the Great Lakes Region
(2011-09) Kamanga, Khoti Chilomba
The term ‘Great Lakes Region’, although used liberally, does not have a common, shared interpretation. In the context of the International Conference on the Great 1 Lakes Region (ICGLR) the term denotes eleven African states, seven of whom, namely Burundi, the DemocraticRepublic of Congo (DRC), Kenya, Rwanda, Tanzania, Uganda and Zambia, are perched on the shores of Africa’s largest lakes: Victoria, Tanganyika, Albert and Kivu. The remaining four ICGLR member states: Angola, the Central African Republic (CAR), the Republic of Congo – Brazzaville and Sudan, do not enjoy such proximity to the lakes. In this paper the term ‘Great Lakes Region’ has a restrictive interpretation and is conﬁ ned to the ‘core’ Great Lakes states of Burundi, the DRC, Kenya, Rwanda, Tanzania, and Uganda.
Intellectuals at the Hill
(Dar es Salaam University Press, 1993) Shivji, Issa G.
Silences in NGO Discourse
(Pambazuka Press, 2007-06-30) Shivji, Issa G.
Where Is Uhuru?: Reflections on the Struggle for Democracy in Africa
(Pambazuka Press, 2009-04-01) Shivji, Issa G.; Murunga, Godwin R.
Tanzania. The Legal Foundations of the Union 2nd Edition
(Dar es Salaam University Press, 2009) Shivji, Issa G.
Issa Shivji's book, first published in 1990 provided the first detailed analysis of the fundamental legal foundations of the union in 1964 between Tanganyika and Zanzibar which led to the birth of the United Republic of Tanzania. Used by students of law, politics and the Tanzania union as a basic reference work the book is a product of wide ranging scholarship and close analysis of legal texts that constitute the primary sources of the Union-and the author's long engagement with the morality of constitutional politics that bear on Zanzibar's status in the Union. Out of print for over a decade this second expanded edition includes a few minor revisions, comments and references have been put in square brackets to distinguish them from the original text.
Pan-Africanism or Pragmatism
(Mkuki na Nyota Publishers, 2008) Shivji, Issa G.
The Pan-Africanist debate is back on the historical agenda. The stresses and strains in the union of Tanganyika and Zanzibar since its formation some forty years ago are not showing any sign of abating. Meanwhile, imperialism under new forms and labels continues to bedevil the continent in ever-aggressive, if subtle, ways. The political federation of East Africa, which was one of the main spin-offs of the Pan-Africanism of the nationalist period, is reappearing on the political stage, albeit in a distorted form of regional integration. It is in this context that the present study is situated. Backgrounding the major dramas of the union of Tanganyika and Zanzibar this book studies the personalities involved and their politics, and includes an account of the Dodoma CCM conference that toppled President Jumbe. It is also a detailed legal analysis of the union incorporating powerful new material.
Let the People Speak
(CODESRIA, 2006) Shivji, Issa G.
The African national project has been defeated, and the imperial/globalisation project is on the offensive. And yet, as Issa Shivji, one of Africa’s most distinguished public intellectuals, argues in this collection of essays, there is bound to be a backlash – witness Latin America. African scholars are already debating the resurgence of nationalism and Pan-Africanism, and searching for alternative paths of development and democracy. The ninety essays contained in this book are selected by the author from his writings published in newspaper columns during the period 1990-2005, a critical time in Tanzania that witnessed the rise and fall of nationalism, and transition to and consolidation of neo-liberalism. The essays give an overview of the intellectual history and traditions in Tanzania, one of the few countries in Africa which can still boast of political stability and reasonable openness. The writings reflect the hopes and fears of the progressive intellectual community, and project a strong sense of the enduring ideas and values in the period. The author’s aims are to recover the history of the recent past in Tanzania, build a narrative of where the country is coming from, and provide a historical understanding of the events and climate of the present. The essays give an overview of the intellectual history and traditions in Tanzania, one of the few countries in Africa which can still boast of political stability and reasonable openness. The writings reflect the hopes and fears of the progressive intellectual community, and project a strong sense of the enduring ideas and values in the period. The author’s aims are to recover the history of the recent past in Tanzania, build a narrative of where the country is coming from, and provide a historical understanding of the events and climate of the present.
The Concept of Human Rights in Africa
(CODESRIA, 1989) Shivji, Issa G.
Hitherto the human rights debate in Africa has concentrated on the legal and philosophical. The author, Professor of Law at the University of Dar es Salaam, here moves the debate to the social and political planes. He attempts to reconceptualise human rights ideology from the standpoint of the working people in Africa. He defines the approach as avoiding the pitfalls of the liberal perspective as being absolutist in viewing human rights as a central question and the rights struggle as the backbone of democratic struggles. The author maintains that such a study cannot be politically neutral or intellectually uncommitted. Both the critique of dominant discourse and the reconceptualisation are located within the current social science and jurisprudential debates.
Accumulation in an African Periphery
(Mkuki na Nyota Publishers, 2009) Shivji, Issa G.
The "Washington consensus" which ushered in neo-liberal policies in Africa is over. It was buried at the G20 meeting in London in early April, 2009. The world capitalist system is in shambles. The champions of capitalism in the global North are rewriting the rules of the game to save it. The crisis creates an opening for the global South, in particular Africa, to refuse to play the capitalist-imperialist game, whatever the rules. It is time to rethink and revisit the development direction and strategies on the continent. This is the central message of this intensely argued book. Issa Shivji demonstrates the need to go back to the basics of radical political economy and ask fundamental questions: who produces the society's surplus product, who appropriates and accumulates it and how is this done. What is the character of accumulation and what is the social agency of change? The book provides an alternative theoretical framework to help African researchers and intellectuals to understand their societies better and contribute towards changing them in the interest of the working people.
Haya ni Mahindi, sio Makana
(2002-10-17) Shivji, Issa G.
Time to Reopen a National Debate on Democracy
(1990-12-12) Shivji, Issa G.
The article sharply distinguishes between democracy and multiparty system and argues that while the later may be necessary it is not sufficient to constitute democratic politics. The article argues for a protracted democratisation process of entering multiparty system so as to ensure that the multiparty system is based on a national consensus which would underlie a new constitutional order. Since then we have had two general elections and the recent tragic events all of which show that we are dangerously slipping into narrow nationlaism and parochialism. Several weeks ago President Mwinyi said that the Government was intending to form a commission which would monitor the views of the people in the current debate on oneparty vs. multiparty. However, he said, the Government would welcome any suggestion on a different method of concluding the debate. It is in the light of this invitation that I humbly offer my views. Origin and Content of the Debate The method that we eventually adopt to arrive at a decision on the various issues raised by the debate depends partly on the position we take on the origin and the content of the current debate. Examination of various contributions which have been made so far reveal at least two broad positions. The first position sees the number of parties whether oneparty or multiparty as the central issue in the existing debate. It probably also holds that the immediate origins of the debate lie in two sources: changes in Eastern Europe on the one hand, and the pressures from Western Europe to adopt a multiparty system, on the other. Those who explicitly or impliedly subscribe to this position, whether in favour of oneparty or multiparty, use the experiences and theories of the oneparty Eastern and the multiparty Western Europe as their points of departure and reference as well as in justification and rationalisation of their views. The second position holds that the central issue in the debate is the question of democracy and that the party system is only an aspect of democracy. Furthermore, the debate on democracy has been an on going process within our country albeit with ups and downs. The most recent example of such a debate was the constitutional debate of 1983/84. This position therefore tends to belittle the changes in Eastern Europe as having little to do with the current debate in Tanzania.
The Federation of Great Lakes Region
(2004-12-04) Shivji, Issa G.
The East African Federation is again on the horizon. The timetable is out. The Federation that was much talked about over forty years ago by the nationalist leaders may just come to fruition but under very different conditions. All the peoples of East Africa must debate these new conditions. This time around we should not leave it simply to the states and politicians to unite us. Only if we unite as a people can we ensure sustained unity. And as a people we have to widen our horizons to take into account new conditions and possibilities. I would like to underscore two new conditions. First, the original four countries Kenya, Uganda, Tanganyika and Zanzibar which were supposed to be part of the Federation in the early 1960s have contracted to three as Tanganyika and Zanzibar are now Tanzania. As we know, the Union question itself has been a subject of much discussion among us. Do we need to resolve this issue as we enter the Federation? Secondly, the number of potential members of the Federation has expanded to five, Rwanda and Burundi have not only shown interest but want very much to be part of the process right from the beginning. This is a welcome sign. But we have to go beyond. We have to think in terms of a Federation of Great Lakes Region (FGLR). The Federation of Great Lakes Region would include the Democratic Republic of Congo. There are many very good reasons why we should think in terms of a greater federation. The DRC shares long borders with at least four East African countries, Tanzania, Uganda, Rwanda and Burundi. It is the richest country in Africa, holding the world's biggest deposits of copper, cobalt, and cadmium. DRC has seen no peace as its riches are coveted by imperial powers. Even neighbouring countries like Uganda and Rwanda did not spare DRC. The wars in DRC invariably spill over to the neighbouring East African countries, whether this is in the form of hundreds of thousands of refugees as in Tanzania or armed conflicts as in Uganda, Burundi and Rwanda. Both peace and prosperity in this part of the world depend strategically on peace, stability and prosperity in the DRC. It is not possible to secure peace without the DRC being part of a larger political entity.

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