The case against Nomgcobo Jiba

South Africa: a time to worry

Yet another controversial appointment deepens doubts about the president’s commitment to the rule of law

Deer in the headlights? © GovernmentZA

By Rian Malan

Spare a thought for South African journalists, reduced to peering into murk and gun smoke for clues as to what’s going on inside South Africa’s National Prosecuting Authority (NPA), the crisis-riddled state agency that decides the fate of criminal suspects in the country. Police files flow into the NPA’s maw, and decisions emerge on the far side—prosecute this case, abandon that one. Once, these decisions were respected. Now they often precipitate furious battles between rival law enforcement factions whose weapons include dirty tricks, illegal wiretaps and sensational leaks to the media. On August 18, however, the smoke cleared momentarily. The scene is a press conference at the NPA’s Pretoria headquarters. Two figures sit on the podium. The dashing man with shaven pate is Shaun Abrahams, a youngish lawyer plucked from relative obscurity to become the new head of the NPA. The woman beside him is Nomgcobo Jiba, a veteran of the NPA’s internal wars. Mr Abrahams announces that he is appointing Ms Jiba to a newly created position in many respects more powerful than his own. As Deputy Director of Public Prosecutions, she will oversee all prosecutorial decisions countrywide.

Given Ms Jiba’s history, this causes certain jaws to gape. “Outrageous”, says Corruption Watch, a lobby group based in South Africa. “A massive step backward”, says a local newspaper. Ms Jiba counters that she is “hurt and offended” by such criticism, and laments the damage it is causing to her three children. She also denies that she is in any way biased in favour of South Africa’s president, Jacob Zuma. With that, the players leave the podium, and the murk closes in again. To understand how it came to this, we have to return to April 6th 2009, the day the NPA announced it was dropping corruption charges against presidential hopeful Jacob Zuma. Helen Zille, then-leader of the Democratic Alliance (DA), South Africa’s largest opposition party, is waiting outside, trembling with rage. She denounces the NPA decision as a travesty and vows that her party will not rest until the agency discloses every shred of evidence upon which it is based. In particular, the DA wants to hear the so-called “spy tapes”, fruit of a cloak-and-dagger wiretapping operation masterminded by the South African Police Service’s Crime Intelligence Division. According to the NPA, two voices can be heard on excerpts of the tapes.

One belongs to Leonard McCarthy, head of the NPA’s directorate of special operations, the other to Bulelani Ngcuka, an influential businessman and close ally of the then president, Thabo Mbeki. These men are heard agonising about the timing of Zuma’s arrest, which they think might cause riots if mishandled. Their conversations also make it clear that Mr McCarthy is not exactly neutral in the rivalry between Messrs Mbeki and Zuma. Audio copies of these conversations are leaked to Mr Zuma’s lawyers, who charge that Mr McCarthy’s indiscretions have hopelessly tainted the NPA’s case. Prosecutors working on the investigation beg to differ, but their seniors overrule them and the Zuma prosecution is abandoned—a decision that opens the way for Mr Zuma to become president. Ms Zille argues that so momentous a decision should have been taken by a judge in open court, not behind closed doors. Hence the DA’s so-called “spy tapes” case, which began as an urgent review application on the day after Mr Zuma’s charges were withdrawn and is still dragging its way through the courts today. From the start, it is repeatedly blocked or delayed by Menzi Simelane, the Zuma appointee who heads the NPA.

The DA retaliates by filing a parallel lawsuit, arguing that Mr Simelane seems incapable of grasping that the constitution requires him to be neutral and asking for his removal from office. The court rules in the DA’s favour: Mr Simelane has to go. Called upon to find a replacement, Mr Zuma’s eye falls upon Ms Jiba. She is too inexperienced to be appointed the NPA’s head, but Zuma decides she will make an acceptable temporary stand-in. She becomes acting National Director of Public Prosecutions in December 2011. Soon after taking up her new position, Ms Jiba is confronted by a court order compelling the NPA to hand over the spy tapes and associated records within 14 days. Ironies abound here. Ms Jiba played a role in the police espionage operation that exposed the Ngcuka/McCarthy conversations in the first place, thereby saving Zuma from criminal prosecution. Then, on coming to power, Mr Zuma took a step some saw as a thank-you: he expunged the criminal record of her husband, a lawyer jailed for stealing his client’s money. Now a court is trying to compel Ms Jiba to hand over evidence that might overturn the NPA’s 2009 decision and land her president back in the dock, facing 783 criminal charges arising from alleged arms deal bribes.

Her response is an affidavit arguing that the spy tapes are subject to attorney-client privilege, and that the DA can have them only if Mr Zuma’s lawyers agree. A damning appeal court judgement concludes that Ms Jiba should have taken a position, and not have left the decision in Mr Zuma’s hands. “Such conduct undermines the esteem in which [her office] ought to be held by citizens of this country,” the court says. Ms Jiba’s next crisis arrives in April 2012, when she places a veteran prosecutor, Glynnis Breytenbach, under suspension, allegedly for challenging NPA decisions in a matter involving Richard Mdluli, another veteran of the clandestine police effort to bug NPA telephones. He had been appointed head of police crime intelligence after Zuma came to power, only to fall victim to what he describes as a conspiracy orchestrated by political enemies. In 2011, facing an array of criminal charges, he wrote a letter asking President Zuma to intervene on his behalf and promising in return “to help the president succeed next year”— generally interpreted as an offer to help Zuma fend off any challenge he might face at a forthcoming ANC electoral conference.

One of the cases against General Richard Mdluli involves an unsolved murder, but let’s focus here on his alleged abuse of Crime Intelligence’s secret fund for informers, spies and undercover agents. In a secret report to the Inspector-General of Intelligence, General Mark Hankel alleges that General Mdluli has appointed several friends and relatives to such positions, even though their utility as spies is not exactly clear. His wife and ex-wife, for instance, are both reportedly drawing salaries equivalent to that of a police colonel while sitting at home doing nothing. In December 2011, one of Ms Jiba’s subordinates announces that he is withdrawing fraud charges against General Mdluli on the grounds that the NPA is barred from intervening in top-secret intelligence matters. The aforementioned Ms Breytenbach, lead prosecutor on the case, is dumbfounded. She writes Ms Jiba a 25-page memo, arguing that the charges against General Mdluli are legally sustainable and urging Ms Jiba to allow her to reinstate them. Ms Jiba ignores her. Ms Breytenbach is placed on suspension and eventually forced out of the NPA. General Mdluli returns to work in March 2012, apparently cleansed and vindicated. A non-profit organisation named Freedom Under Law challenges General Mdluli’s reinstatement in court, and Ms Jiba finds herself before a judge, attempting to explain her actions.

She says underlings made the key decisions, not her. Indeed, she says she wasn’t even aware that General Mdluli had been let off the hook, an assertion that will later strike retired Constitutional Court judge Zac Yacoob as “incredible”. Ms Jiba goes on to claim that she received no objections to the Mdluli decision. This flies in the face of evidence from Ms Breytenbach, who shows that she formally requested Ms Jiba to rescind the Mdluli decision, only to be suspended and slapped with an array of disciplinary and corruption charges, all of which were eventually resolved in her favour. Judge John Murphy finds Ms Jiba’s conduct inexplicable, and orders that the charges against Mr Mdluli be reinstated. In his judgement, Judge Murphy slates Ms Jiba for failing to evaluate the gravity of the evidence against General Mdluli, saying that she had attempted to “shield illegal and irrational decisions from judicial scrutiny”. Meanwhile, General Johan Booysen, a central figure in a sizzling scandal in Durban, is attacking Ms Jiba on another front. General Booysen has made a nuisance of himself by authorising a wiretap operation against Thoshan Panday, a flamboyant businessman allegedly connected to the local Zuma patronage machine.

According to the Mail and Guardian, a Johannesburg weekly, the resulting recordings point incriminating fingers at persons in high places, including (some say) the president. When General Booysen declines to accept a bribe and look the other way, he finds himself facing criminal charges under the Prevention of Organised Crime Act. Outraged by this insult to his integrity, General Booysen challenges his arrest in court. Ms Jiba is called upon to explain why she authorised his detention. In response, she produces a stack of 290 witness statements pertaining to shootings involving officers from the Cato Manor organised crime unit, which falls under General Booysen’s command. Ms Jiba argues that the unit is a death squad, given to performing paid assassinations and extrajudicial executions. But the evidence in this regard is contentious, and against General Booysen in person, almost non-existent. Analysis of those 290 statements shows that General Booysen’s name is mentioned only three times. In two cases, he attended police shootings in their aftermath, and did nothing inappropriate. The rest of her evidence is even weaker. One of the affidavits on which she based her decision is dated two weeks after Booysen’s arrest, and devoid of direct accusations against General Booysen.

A second is neither signed nor dated, and a third comes from a witness who has since died. General Booysen maintains that Ms Jiba actually has no evidence against him at all, and that her claims to the contrary are “mendacious”. When Ms Jiba fails to provide a rebuttal, Judge Trevor Gorven draws the logical inference: Ms Jiba has tacitly admitted to lying under oath. By now, Ms Jiba has stepped down from her temporary leadership position and the NPA has a new head, Mxolisi Nxasana. By several accounts, Mr Nxasana is an honest man who wants to do the right thing. Perturbed by mounting judicial criticism of Ms Jiba, he asks outside counsel to review her performance. The consultant recommends that Ms Jiba be prosecuted for her actions in the Booysen case. When this fails to convince the presidency, Mr Nxasana refers the matter to a committee headed by Judge Yacoob. He agrees: there is “a prima facie” case to answer. With that, Mr Nxasana steels himself and files fraud and perjury charges against Ms Jiba. Judging by the reaction, this decision is not welcome. A hidden hand reaches into Mr Nxasana’s past and comes forth with several skeletons. According to a presidential proclamation, these include youthful convictions for assault and unspecified “criminal charges for acts of violence”. His sense of propriety suddenly inflamed, Mr Zuma announces that he is convening a hearing to assess Mr Nxasana’s fitness for office.

According to NPA insiders, Mr Nxasana has no stomach for war and the strain is affecting his family. So he decides to step down in return for R17m ($2.2m) and a statement from Mr Zuma withdrawing any aspersions that may have been cast on his character. Once Mr Nxasana is gone, rivals flood into the vacuum left by his departure and set about reversing decisions made during his brief tenure as NPA chief. Within days, the four year- old fraud case against General Mdluli is “temporarily” abandoned to allow the NPA time to finish its investigation. Then the youthful and relatively inexperienced Mr Abrahams is installed as the new NPA head. One of his first acts in office is to announce the withdrawal of criminal charges against Ms Jiba on the grounds that she “acted in good faith” in authorising General Booysen’s arrest. Soon after, General Booysen is suspended yet again. A senior officer who backed General Booysen’s pursuit of Mr Panday—Robert McBride, head of the Independent Police Investigations Directorate—is also placed under suspension. In fact, Mr Nxasana himself might be a victim of the Panday case: last year, newspapers reported that he was planning to send ace prosecutor Gerrie Nel to Durban to re-examine all the cases brought against Mr Panday. Now that investigation appears to be dead in the water.

In earlier times, a person in Mr Panday’s position might have worried about losing his gleaming red Ferrari to Willie Hofmeyr’s Asset Forfeiture Unit, one of the few NPA divisions regarded as clean and effective. But Mr Hofmeyr was sidelined after Mr Abrahams came to power, and now occupies an inconsequential administrative position. This brings us back to the press conference described in the opening paragraphs—the one where Mr Abrahams appointed Ms Jiba to a position more powerful in many respects than his own. According to Ms Breytenbach, now the DA’s shadow justice minister, this reflects the reality: Ms Jiba is the real boss of the NPA, she says, and Mr Abrahams her patsy. “Jiba is odious,” Ms Breytenbach says. “Her agenda is to protect the president and his networks, even if it means destroying the NPA.” Well yes. The DA has an agenda too—get the president. But something more important than Mr Zuma’s fate is at stake here. South Africa’s once respected prosecutorial service is itself increasingly under suspicion. As David Lewis of Corruption Watch puts it, “It is time to be really, really worried.

Rian Malan is a Johannesburg-based musician and journalist best known for his 1990 memoir, “My Traitor’s Heart”, recently republished as a Vintage Modern Classic. A collection of his subsequent work, “Resident Alien”, was published in 2009. Malan has also made several award-winning documentaries, most recently The Splintered Rainbow, for Al Jazeera.

Curbing corruption

Nigeria: delays and distractions

The new president has vowed to fight graft, but will his judicial reforms work?

By Ini Ekott

One of Nigeria’s most dramatic episodes of judicial corruption happened in January 2013. The country’s Economic and Financial Crimes Commission (EFCC) had charged six officials with pilfering 32 billion naira [$204m] from the Nigerian police pension fund. One of the accused, John Yakubu Yusuf, a deputy director in the police pension service, had admitted pocketing two billion naira ($12.7m) in exchange for a two-year prison term as part of a plea bargain. In the event the judge was even more lenient, offering him the option of a 750,000 naira ($4,776) fine as an option and letting him walk out of court. An intense public outcry followed. The commission, considered Nigeria’s most efficient anti-corruption agency, later claimed it had been tricked into accepting the plea deal and rearrested Mr Yusuf on fresh charges. The National Judicial Council, a regulatory body whose aim is to guarantee judicial independence, subsequently suspended the judge, Justice Mohammed Talba, without pay for a year. But Nigerian anti-corruption activists said the court case was yet another illustration of the rot in the Nigerian judiciary.

They claim loopholes in the country’s legislation allowed crooked officials to raid the country’s coffers with impunity. The outrage about the pension fund scam reflected a growing mood of citizen impatience with “corrupt, small-minded” politicians, wrote journalist Remi Adekoya about the country’s ruling elite. Nigeria ranks 136 out of 174 countries on pressure group Transparency International’s 2014 corruption perceptions index. Its judiciary is the fifth most corrupt of 12 government sectors, according to Transparency International’s 2015 global corruption barometer. Commentators and activists say reforms must start with the country’s flawed criminal justice system. “It is the first step, and we would deceive ourselves if we do otherwise,” Ubong Ben of Facts and Figures, an Abujabased research group, told Africa in Fact. Yet attempts to punish the plunderers have not succeeded. The EFCC, one of Nigeria’s three anti-corruption agencies, says it obtained 1,046 convictions between 2003 and 2014. Mr Ben, however, claims these figures reflect only the “smaller thieves”: internet fraudsters, document forgers, impersonators and dubious property brokers.

Since its inception in 2003, the EFCC has opened over 30 cases targeting former governors, ministers, lawmakers and bank chiefs, but has only won four convictions. Cases linger, sometimes for ages, delayed by technicalities. “We have cases that we have gone to the Supreme Court on [mere] interlocutory applications, while the substantive case is [held] in abeyance for years,” Wilson Uwujaren, spokesperson for the EFCC, told Africa in Fact. An example is the case involving former governor Chimaroke Nnamani of south-eastern Enugu state. He is accused of laundering 5 billion naira ($25m) through a secret account. Eight years after the case was filed, the trial has not begun. The EFCC says Mr Nnamani has deliberately stalled the case by making frequent applications to travel abroad for medical treatment, according to online Premium Times newspaper. This July, the court ordered the seizure of some of his assets after several of his co-accused pleaded guilty. Nigeria’s criminal laws allow smart lawyers to exploit loopholes and stall cases, said Itse Sagay, a former dean of the law faculty at the University of Benin and appointed by Nigeria’s new president in August to head a new committee to oversee legal reforms.

One technique lawyers use is to drum up technical challenges to a case and distract judges from the main charges. They ask for frequent adjournments or contest a court’s jurisdiction. If a judge finally decides that he has authority over the case, the defendant often appeals. The substance of a case is ignored. By the time the highest court finally decides on the lower court’s jurisdiction, a decade might have elapsed. “By then, the investigating police officer [or prosecutor] may have retired,” Mr Sagay said in an interview with Punch magazine. “The officials of the Ministry of Justice who handled [the case] at the early stages in the High Court may have been promoted, and the judges themselves may [also] have retired,” he said. “What we call ‘prosecution fatigue’ sets in [and] the case dies a natural death. It is not that the accused is innocent. Rather, the state does not have [the] stamina to pursue the case to the end.” Questions have also been raised about judges’ use of legal loopholes to hand down light sentences to people convicted of serious crimes, such as stealing billions of naira, while others who are convicted for petty crimes face stiff penalties.

In 2010, Cecilia Ibru, a former Oceanic Bank chief executive was accused of stealing $1.2 billion. She pleaded guilty to three of 25 counts of fraud and mismanagement and was jailed for six months, but allowed to serve her time at a luxury Lagos hospital. Three months after the 2013 police pension fraud ruling, public anger was stirred again when a 31-year-old former convict, Kelvin Ighodalo was sentenced to 45 years in jail for stealing a governor’s phone in the southern state of Osun. Judges are easily bribed. Senior judicial figures should be subjected to lifestyle audits and their accounts scrutinised to find unusually large amounts of money that might flag the acceptance of bribes, Debo Adeniran, executive chairman of the Coalition Against Corrupt Leaders (CACOL) told Africa in Fact. Between 2009 and 2014, the National Judicial Council sanctioned 64 judges for various transgressions, including corruption, and dismissed three of them, Chief Justice Mahmud Mohammed said at a Nigerian Bar Association seminar in June. None of the sanctioned or dismissed judges faced prosecution.

However, the Administration of Criminal Justice Act of 2015, a new law approved by the former president, Goodluck Jonathan, introduces sweeping judicial reforms. Mr Sagay’s committee of experts will oversee the implementation of these reforms. The new law stipulates that cases must be heard without adjournments. Where a postponement is inevitable, it must not exceed two weeks. No case may be interrupted more than five times. Judges, even if promoted to a higher court during a case, may no longer abandon the trial; previously, this often meant that cases had to be restarted. Nigeria’s judges must now focus on the substance of a case, while also hearing technical objections, such as challenges to their jurisdiction, Mr Sagay told The Punch in early September. His committee will also push for stiffer sentencing for corruption convictions. In addition, the judicial council has issued new disciplinary regulations to rein in corrupt judges. But activists warn that some sections of the new rulebook may have an adverse effect, and continue to embolden corrupt judges. An example is a section stipulating that a complaint of misconduct must be lodged against a judge within six months of an alleged incident. Revelations of possible misconduct can often take longer than that.

“In most cases, the corrupt conduct of a judicial officer may only become public knowledge following a careless slip, or [as a result of] the irrepressible work of investigative reporters,” Joseph Otteh, executive director of Access to Justice, a Lagos based non-governmental organisation that carries out legal research, told a news conference in September. “Whenever the facts become known, let due process follow.” Mr Adeniran claims the law should have included even stiffer sanctions. In particular, he argues, judges should no longer be allowed to hand down concurrent sentences. “If an individual is guilty of five corruption charges and each is punishable by a two-year term, then the ruling should be ten years in jail. No concurrent sentence,” he says. “That’s what will deter corruption.”

Ini Ekott is the Assistant Managing Editor (News) at Premium Times, an online newspaper based in Abuja, Nigeria. Prior to this, he reported for Next, an investigative newspaper in Lagos. He has written for IPS Africa and other publications and is a former Wole Soyinka investigative journalist of the year.

Spoils of war

Côte d’Ivoire: war crimes and elections

Victor’s justice is unavoidable in post-election conflict

By Brian Klaas

Elections should bring peace, not war. But for the last 15 years, whenever voters in Côte d’Ivoire went to the polls, ballots turned to bullets. After the 2010 election sparked the latest civil war, tensions remained, leaving the victors scrambling to forge a new order built on justice and reconciliation. In the wake of violence, a new political order had to be built slowly, piece by piece, in courthouses and in prisons, by judges and by jailors. In the context of shaky post-election justice and reconciliation, Ivoirians re-elected President Alassane Ouattara to a second term on October 25th 2015. The October vote was peaceful and it was the first since the 2010-11 civil war, which left 3,000 people dead after post-election fighting. The war began after contradictory announcements on the election outcome. The electoral commission declared Mr Ouattara the victor. At the same time, the Constitutional Council—stacked with allies of the ruling regime—proclaimed victory for the incumbent, Laurent Gbagbo. The international community sided with the electoral commission, asserting that the outcome was clearly in Mr Ouattara’s favour. These conflicting announcements sparked violence, as pro-Ouattara and pro-Gbagbo militias battled intensely for control of the government.

The fighting raged for months, stacking up thousands of casualties. The conflict ended in mid-April 2011 when French and United Nations forces intervened and tipped the scales. Mr Ouattara was inaugurated soon after. Mr Gbagbo was arrested in April 2011 and transferred to the custody of the International Criminal Court (ICC) in November of that year to face multiple counts of crimes against humanity. At the time of going to print his trial was set to begin on November 10th 2015. The wounds of post-election violence heal slowly, leaving deep scars on a nation’s body politic. As Africa in Fact reported in December 2014, Mr Ggagbo’s supporters are critical of the “two-tier justice” being meted out, “in which the spoils belong to the victor and his allies”. Many of Mr Gbagbo’s partisans still contend his defeat was unjust and blame French imperialism for meddling in their nation’s politics. But they are now focusing their attention and scorn on Mr Ouattara, who they say is only instituting “victor’s justice”. Since losing power in 2011, Mr Gbagbo’s party—the Front Populaire Ivoirien (FPI)—has set its sights on retaking the presidency in the October 2015 election.

To do so, they would need to defeat Mr Ouattara, and the formidable political machine of his party, Rassamblement des Républicains (RDR). (In this election, the RDR ran under a different acronym to signify its alliance with another party, the Parti Démocratique de la Côte d’Ivoire – Rassemblement Démocratique Africain, and is officially known as the Rassemblement des houphouétistes pour la démocratie et la paix.) Even with Mr Gbagbo out of the picture and in custody in The Hague, the major players were nonetheless the FPI and the RDR. But even before the ballots were printed, the FPI’s electoral hopes were largely dashed. The candidates, leaders, and key players who comprised the top echelons of Mr Gbagbo’s former political machine did not campaign. Instead, they languished in courtrooms and prisons in Côte d’Ivoire or in The Hague, alongside their figurehead. Although strong evidence shows that both sides in the conflict committed war crimes, critics have put the burden of blame on Mr Gbagbo and his entourage. Charles Blé Goudé, a top ally of Mr Gbagbo, is also in The Hague, awaiting trial at the ICC for crimes against humanity for his alleged part in the 2010-11 post-election violence.

On March 10th 2015, a court in Côte d’Ivoire convicted Mr Gbagbo’s wife, Simone, for her role in the conflict and sentenced her to 20 years in prison. (The ICC issued an arrest warrant for her in February 2012, on four counts of crimes against humanity, and is still clamouring to prosecute her.) Aboudrahamane Sangaré, the former vice-president of Mr Gbagbo’s FPI, was sentenced to five years in prison, as was Mr Gbagbo’s son, Michel. These figures would have formed the top tier of the FPI’s 2015 presidential hopefuls—but they were behind bars instead. As a result, the FPI splintered into factions, thereby reducing their electoral chances against Mr Ouattara. Pascal Affi N’Guessan, a more moderate member of the old Gbagbo guard, headed the FPI electoral list. His presence as the FPI’s candidate showcased the perils and political rewards that postconflict justice afforded Mr Ouattara’s administration. Mr N’Guessan was arrested in April 2011, and later sentenced to two years in prison for disturbing the peace, but he was soon released. His sentence was comparatively short, compared to other Gbagbo hardliners who are still in jail.

Some suggest that the Ouattara regime intervened to lessen Mr N’Guessan’s punishment so as to ensure that a moderate would represent the FPI in the 2015 contest. The FPI thought Mr N’Guessan would be willing to negotiate with Mr Ouattara. Others consider him a sell out and traitor to the cause. For Mr Ouattara, however, his candidacy was either a stroke of luck or cynical political genius. Whether those accusations were correct or not, without Mr Gbagbo’s incarceration, Mr N’Guessan would not have participated in the election because Mr Gbagbo would have been the party’s presidential candidate. This furthered Mr Ouattara’s electoral prospects in three ways. First, Mr N’Guessan lacked the support base that Laurent or Simone Gbagbo enjoy in Côte d’Ivoire. He is a second-tier political figure and therefore was always less likely to win. So long as most of the former Gbagbo heavyweights were in prison, Mr Ouattara’s odds at the polls were better. Second, Mr N’Guessan’s moderate pragmatism, in contrast to the Gbagbo ou rien (“Gbagbo or nothing” in French) hardliners, drove a wedge straight through the FPI’s middle. Some in the party argued that the FPI should boycott the election so long as Mr Gbagbo and other party leaders remained in jail.

Others—like Mr N’Guessan—insisted that the party look forward rather than backward. This wedge likely prompted some FPI supporters to stay home on election day, further enhancing Mr Ouattara’s shot at a second term. Third, Mr Ouattara needed the FPI’s involvement to ensure that the international community saw the election as legitimate and fair. If the FPI, Côte d’Ivoire’s second largest political party, had not participated, it would have been difficult for Mr Ouattara to argue that the elections marked an inclusive and peaceful conclusion to the five-year-old wounds wrought by the 2010-11 civil war. Preliminary turnout figures at the time of going to print suggested that just over half of the eligible voters participated, but that participation rates were much higher in Mr Outtara’s strongholds in the north and much weaker in areas that have historically favoured Mr Gbagbo. That should be sufficient for Mr Outtara to claim an internationally recognised mandate, but will do little to reconcile the nation. The lesson, however, is not about this election or Mr Ouattara’s victory at the polls.

Instead, Côte d’Ivoire’s post-conflict trauma—and the attempt to close those rotting wounds with fresh elections—offers a broader parable for the political nature of justice in the wake of electoral violence or civil wars. Victor’s justice is virtually unavoidable in post-election conflict because any prosecution has, by definition, political consequences. Pardoning Mr Gbagbo and his allies would have had political ramifications as large as the ones that have resulted from aggressive prosecution. Any path the Ouattara regime pursued was riven with political division. With Gbagbo’s trial about to commence, the election could prove the calm before a new political storm.

Brian Klaas is a Clarendon scholar and researcher at Oxford University. He has also served as a political adviser on Madagascar to the International Crisis Group and the Carter Center’s election observation mission for Madagascar’s December 2013 elections.

Countering the chill

Southern Africa: defamation and insult

Though still on the books, laws to silence dissent are fading into disfavour

Rafael Marques de Morais © Kate van Niekerk

By Micah Reddy

Defamation and insult laws remain on the books in many countries, but for the most part, the West has abandoned enforcing these statutes. In much of Africa, however, criminal trials for insult and defamation are still commonplace and continue to have a chilling effect on free expression. Research by media watchdog the Committee to Protect Journalists (CPJ) “shows that all too often the media are muzzled through the use of laws designed to silence critical voices”, notes Sue Valentine, CPJ’s Africa programme coordinator. Insult laws, a feature of Francophone Africa traceable to an 1881 French Law, are designed to shield public officials from disrepute, and silence dissenting voices. Defamation laws differ in that they are not explicitly aimed at protecting those in authority. In theory, any citizen has recourse to defamation law if written (libel) and/or spoken (slander) statements harm someone’s reputation and dignity. In practice, however, defamation laws are often used to the same ends as insult laws and with a similar effect on free speech in southern Africa. Cases are often brought against the critics of powerful figures, usually when important issues of public interest are at stake, such as high-level corruption.

“Criminal libel laws that recognise truth as a defence in effect invite prosecutions for statements of opinion, which by definition cannot be proven,” according to a 2000 report by the World Press Freedom Committee, a group of national and international news organisations. “Thus, such statutes frequently function as insult laws.” Insult and criminal defamation trials may lead to imprisonment and heavy fines. For instance, Angolan investigative journalist Rafael Marques de Morais was given a six-month suspended jail term in May for defamation after his exposé of corruption, torture and killing in the country’s diamond fields implicated the country’s top generals and companies. “It’s sending a message that ‘we can lock you up’,” Mr Marques de Morais said. “‘We can send [you] to jail any time we want.’” The journalist’s latest ordeal was lighter than the one he faced 15 years ago, when he was jailed for 43 days, ordered to pay a $17,000 fine plus costs and given a six-month prison sentence (later suspended) for accusations made against Angola’s president, José Eduardo dos Santos. However, several recent developments suggest a growing movement against criminalising free expression.

A 2010 African Commission on Human and Peoples’ Rights resolution called on all states to “repeal criminal defamation laws or insult laws which impede freedom of speech”. And in 2014 the African Court on Human and Peoples’ Rights ordered Burkina Faso to review its legislation after ruling that custodial sentences for defamation were disproportionate and excessive financial penalties were unfair. So far only one African country, Ghana, has fully and unambiguously repealed criminal defamation laws. Other countries have moved in this direction, albeit at a slower pace. For example, the Zimbabwean Constitutional Court ruled in 2014 that the criminal code’s defamation law violated the constitution. “Freedom of expression, coupled with the corollary right to receive and impart information, is a core value of any democratic society deserving of the utmost legal protection,” the court said. However, this ruling applied only to the previous constitution, which was replaced with a new one in 2013.

Meanwhile, arrests for slander and defamation continue because of legal ambiguities, says Jacqueline Chikakano, Zimbabwe legal officer of the Media Institute of Southern Africa. According to media reports, in the last ten years police have arrested more than 70 people for insulting the president, Robert Mugabe, although not all were charged. For instance, Reuben Gatsi was arrested in May for a remark he allegedly made about Mr Mugabe’s age. Zimbabwe’s new constitution complicates matters by explicitly excluding “malicious injury to a person’s reputation or dignity” from freedom of expression, thereby creating greater space for criminalising defamation. In some countries defamation laws remain on the statute books, but judges have come out strongly against criminalising expressions of dissent. For example, in September 2015 a Mozambican court acquitted economist Carlos Nuno Castel-Branco and editor Fernando Mbanze of criminal defamation charges. Mr Mbanze had published in his newspaper an open letter that Mr Castel-Branco had posted on his Facebook page.

The economist had compared the 2013 political crisis in Mozambique with the “preludes to fascism” in Europe and accused the former president, Armando Guebuza, of surrounding himself “with bootlickers who lie to you every day, who invent false reports, and give advice based on false premises”. However offensive some might find the letter, “it is perfectly acceptable in a democracy”, ruled Judge João Guilherme in Maputo’s district court. South African courts, though, have upheld criminal defamation laws. In 2014, for example, the High Court acquitted journalist Cecil Motsepe of defaming a judge he claimed was racist. The court ruled that it could not be proven that Mr Motsepe intended to cause harm. But the court nevertheless echoed a previous Supreme Court of Appeal decision: “even though the defamation crime undoubtedly limits the right to freedom of expression, such limitation is reasonable and justified in an open and democratic society.” However, as in most Western countries, criminal defamation is rarely used to silence critics in South Africa.

It helps that the country’s press is governed by an effective system of independent co-regulation in the form of the Press Council, which consists of representatives of the press and the public, as well as judges. “The standard approach if there’s been a front page story that is inaccurate and defamatory is to order a front page apology,” says media lawyer Dario Milo. “There have been very prominent front-page apologies in the last few years where the media get it wrong and are ordered to apologise by the ombudsman,” Mr Milo adds. “A prominent and prompt apology mitigates any damages claim substantially, so it’s an incentive to the media where they get it wrong.” Effective self-regulatory or independent co-regulatory mechanisms for the media and recourse to fair civil claims which do not have a seriously chilling effect on free expression are increasingly seen as acceptable safeguards to individuals’ reputations. Some within South Africa’s ruling alliance have called for tighter control of the media—for statutory media regulation and the imposition of insult laws to protect the president.

Yet, in a surprise move, Jeff Radebe, minister in the presidency, stated in September 2015 that the ruling party would “spearhead legislation through parliament to eliminate criminal defamation from our common law”. This reflects the growing recognition of insult and criminal defamation laws as anachronistic and incompatible with democracy. The end of these laws could soon follow, at least in South Africa.

Micah Reddy is a South African media activist with the Right2Know Campaign. A former managing editor at the Yemen Times, he has worked in the Middle East as a freelance journalist and editor. He holds a Masters in African Studies from Oxford University and is a co-founder of Sound Africa Podcast

Rape and justice

Mozambique’s gender-based violence laws

Several laws address rape and domestic violence, but their enforcement is shaky

“Rape is a monstrous crime” © Mercedes Sayagues

By Mercedes Sayagues

One night in April 2013, Luisa, a 46-year-old woman living in a small town in Mozambique, was on her way home when two men dragged her into an abandoned hut and raped her. “I wanted to die, but I told myself I must survive for my daughters,” said Luisa. After the ordeal in Boane, about 40km west of Maputo, Mozambique’s capital, Luisa (who asked that her real name not be used) checked on her teen daughters, and then went with a neighbour to the police station. The officers there did not follow protocol: they did not tell her not to wash before proceeding to hospital; nor did they inform her that she should keep her torn and dirtied clothes to preserve any DNA evidence that might be on them. Luisa then went to Boane’s district hospital. But the nurse there told her to return the following morning at 7am. The nurse was “not familiar” with post-exposure prophylaxis (PEP), Luisa recalls. (PEP is medicine that helps to prevent HIV infection of a person after potential exposure to the virus; HIV, if untreated, causes AIDS.) But when Luisa returned the following morning, another nurse told her to sit on the floor of the maternity ward and wait.

She waited about four hours. The attending doctor later said she had forgotten about her, Luisa recalls. About noon that day, Luisa, a manicurist, finally got through to a doctor who was one of her clients. The doctor knew the hospital director and called him. Soon Luisa had been assigned a hospital bed and dosed with emergency contraception and PEP. Meanwhile, back in Boane, neighbours caught one of the suspects and took him to the police, but he was soon released. Luisa recalled that he had bragged, during the assault, about “knowing cops”. Luisa is one of countless victims of sexual violence who are not protected because Mozambique’s police, doctors and the judiciary are slack in applying the law and procedures. A third of Mozambican women between the ages of 15 and 49 had suffered physical violence after the age of 15, according to a 2011 demographic and health survey (DHS). Some 12% of women in the same age range reported having suffered sexual violence, while a quarter reported suffering some kind of violence in the previous year.

Police recorded 23,660 complaints of violence in 2014, including 350 relating to suspected rapes of minors under the age of 12. But many cases go unreported, and reliable statistics do not exist on how many cases make it to the courts. Several laws and policies address gender violence in Mozambique, including a 2009 law on domestic violence and a new penal code that came into force in June. This new code swept away laws dating from Portuguese colonial days. For instance, under the former penal code dating back to 1886, charges against a suspected rapist of an underage girl could be dropped if he married her. This provision no longer exists. In addition, forced anal penetration is now classed as rape, and a former provision assigning a harsher sentence to the rape of a virgin has been removed. In addition, police say they opened 273 units with staff trained to deal with victims of domestic violence at police stations throughout the country. Over the last decade, Women and Law in Southern Africa/Mozambique (WLSA), an NGO that conducts research into women’s rights in seven southern African countries, says it has educated 700 police and 200 magistrates on gender violence.

Yet many problems remain. The police’s domestic violence units are only staffed from Monday to Friday until 3.15pm, though most violence occurs at night or over the weekend. Trained police staff are frequently assigned outside these units to perform other jobs, says WLSA coordinator Terezinha da Silva. Some police officers, says Ms da Silva, also share patriarchal values and advise women to “sort it out” within the family, she says, effectively protecting aggressors and re-victimising women. Mozambican courts are also slow and overburdened. A 2010 study by Professor Claes Sandgren of Stockholm University concluded that shortages of human resources, infrastructure and equipment were crippling Mozambique’s justice system. There was little coordination among judicial institutions and too little funding, according to the study. The system was “neither efficient nor transparent”, the study said. But the problems go further. “Our judicial system is sick with corruption and negligence,” says sociologist Rafa Valente Machava, executive director of Women, Law and Development (MULEIDE), a women’s rights group. “Perpetrators enjoy impunity; laws are ignored. Justice is for the elites; ordinary folks cannot afford it.”

By law, all health facilities are required to have rape kits and staff who are trained to use them. In practice, these kits are available only at hospitals and large clinics, says Estrella Alcalde, who manages a gender violence project in Mozambique’s Southern Gaza and Inhambane provinces for Pathfinder International, a US-based NGO. A 2011 Pathfinder survey in Gaza province asked women who they would seek help from in cases of violence. Some 78% said they would seek support from family; 33% said they would approach community leaders; and 25% that they would go to the police. Only 2% said they would report to the health services. Women avoid the health services for a number of reasons, including fear of being blamed for the violence inflicted on them, or of discrimination for reporting their case. They may also be ashamed of what has happened to them, or simply ignorant of the options available, according to the survey. Cases of suspected sexual violence recorded by police are not automatically referred to the courts as required by the new law, according to Ms Osório. Meanwhile, hospitals cite confidentiality and do not provide information on victims, even if they are only asked for numbers.

Many complaints relating to suspected sexual violence never make it into court or are simply dropped, she says. Rural Mozambicans often resort to traditional authorities and community tribunals to settle their problems, bypassing state institutions, she adds. “Community leaders are our Achilles’ heel,” agrees Pathfinder’s Ms Alcalde. “They are guardians of tradition and patriarchal norms. [They] perceive the new laws as a challenge to their authority.” However, some leaders are now referring victims to police, she adds. High illiteracy among women and low levels of education among girls are reported by the DHS, and these are other factors undermining law enforcement. Media campaigns are not very effective because nearly half of women in Mozambique do not have access to any media. Sheer distance from police stations and courts, as well as transport costs to towns can deter rape victims from reporting assaults, according to Berta Chilundo, a former president of MULEIDE. Meanwhile, many people do not trust the judiciary, Ms Chilundo argues in a 2013 paper on WLSA’s website. Gender-related attitudes and cultural factors also play a role, she says.

Judges and magistrates are mostly men who work in towns and operate in courts that work in Portuguese, the country’s official language. But two-thirds of Mozambique’s 25m citizens live in the countryside and nearly half of the population speaks only African languages, according to the 2007 census. Both of Luisa’s suspected rapists were eventually arrested. One of them, who was facing other rape charges, died in prison. The other suspect has still not been tried. This is not unusual. Many suspects spend years in prison before going to court, according to the Swedish study. “I was raped and I demand justice,” Luisa says. But two years after her attack, her case is still in limbo.

Mercedes Sayagues is a freelance journalist who covers Angola and Mozambique for the Daily Maverick. She is the author of two studies on AIDS in Africa and one on gold mining in Mali.

Forgive and forget?

Tunisia: transitional justice

A new truth commission to deal with past abuses struggles to retain its role in investigating corruption

Sihem Bensedrine ©

By Eileen Byrne

Tunisia’s “transitional justice” process, which was set in motion in late 2013 after the 2011 revolution that overthrew the regime of Zine el-Abidine Ben Ali, has been bedevilled by problems from its inception. A lack of precision in the law that launched the process, as well as public disagreements among members of a new truth commission, have confused the country. Moreover, a controversial bill drafted in July 2015 by the office of Tunisia’s current president, Beji Caid Sebsi, which sought to remove all corruption cases from the ambit of the truth commission’s investigations, has caused a political storm. Tunisia’s constituent assembly approved a transitional justice law in December 2013, creating a Truth and Dignity Commission (TDC). Proposed by the Islamist-led coalition government, the law tasked the TDC with investigating all “serious or organised” human rights violations that occurred between July 1955, shortly before independence from France, and December 2013. Secondly, the commission was to make recommendations for reform. Victims would receive reparations, either financial or social (such as being given access to employment previously denied).

The law also empowered the TDC to identify any officials still in place who had been responsible for human rights violations, and gave it the power to dismiss them. However it emphasised a need for “reconciliation” aimed at “establish[ing] citizens’ confidence in state institutions”. The TDC’s 15 members were to include rights activists, legal experts and representatives of relevant specialisations, including archivists and physicians. Although the main focus was on individual victims who had suffered under a repressive state, the aim of the TDC was also to uncover cases of “financial corruption and the embezzlement of public funds” that had occurred during the period under review. Serious cases of human rights abuses (such as homicide, torture and rape cases) and cases of corruption and electoral fraud could be handed over to the judicial system by the commission. They would then be heard by specially created panels of judges attached to Tunisia’s existing criminal courts. However, the TDC’s ability to fulfil its mandate was jeopardised by political infighting.

In June 2014, Sihem Bensedrine, a former journalist with a strong track record of dissent under Mr Ben Ali, was appointed TDC president after its first chair resigned—officially due to ill health, but more likely because of internal disputes. Squabbles within the TDC peaked in August 2015, leading to more resignations and an unsuccessful move to dismiss Mrs Bensedrine’s deputy, Zouheir Makhlouf, after he alleged financial malpractice within the TDC. Confronted with a wide range of abuses and corruption, the TDC has had a heavy workload. Some Tunisians seeking redress from the TDC are surviving followers of Salah Ben Youssef, a rival nationalist leader to Habib Bourguiba, Tunisia’s first post-independence president. Others presenting their cases to the TDC are from a later generation of Tunisians espousing leftist ideologies who had faced imprisonment and torture. Then, from 1987, under Bourguiba’s successor, Zine al-Abidine Ben Ali, members of an Islamist movement that later renamed itself Nahda (“Awakening”) bore the brunt of the security services’ violence.

In the later years of Mr Ben Ali’s rule, rackets run by his in-laws, the Trabelsis, reportedly plundered ever-wider areas of the economy. Civil servants were drawn into their web of unscrupulous dealings—if only, in some cases, by turning a blind eye. TDC members have begun closed door hearings of some individual victims. By June 2015, 13,000 people had presented their cases for consideration. Public hearings of certain cases, selected as illustrations of the wider phenomenon of repression, are to follow, Mrs Bensedrine said in May. Victims and perpetrators will give evidence in these televised hearings. Even the most egregious rights abusers may be allowed to testify and thus avoid having their cases referred to the courts, she said. But the 2013 law provides only an outline of procedures to be followed, and appears to have left considerable latitude to the TDC on this and other points. As an assertive woman in a male-dominated political establishment, Mrs Bensedrine has many detractors.

Members of a parliament dominated by Nidaa Tounes (‘Tunisian Call’), the centrist party founded by Mr Caid Sebsi, are among her most vocal critics. The party also draws some support from former members of Mr Ben Ali’s dissolved ruling party, the Constitutional Democratic Rally. Many in the ranks of Nidaa Tounes regard Mrs Bensedrine as likely to favour Islamist victims’ stories over those of leftists. The TDC has been at pains to dispel this idea. The tensions erupted into a full-scale political storm in July over a proposed new law drafted by the president’s office. Mr Caid Sebsi’s bill on economic reconciliation seeks to remove all cases of corruption from the TDC’s area of responsibility. Critics say it is aimed at drastically undercutting the TDC’s jurisdiction. If approved, the law would see cases of financial misdemeanour handed over to a new, slimmer six member arbitration panel. Like the TDC’s arbitration commission, this panel would receive applications from business people and senior civil servants offering to provide full details of past corruption and to make appropriate refunds.

Mr Caid Sebsi argues that a more “streamlined process” would encourage business people who are under suspicion to continue making job generating investments with confidence. For instance, banks would be more likely to lend them money if they did not feel deterred by the possibility of subsequent confiscations of their clients’ businesses or profits. The preamble to the bill establishes that all officials would be eligible for amnesty for “acts linked to financial corruption…as long as these acts were not intended to secure personal advantage”. Ongoing court cases and penalties imposed for “acts connected with financial corruption or the undermining of public finances” by “civil servants or similar” would be halted. A fast-track three-month “reconciliation process” would allow those who profited personally to agree with the six-member panel on how much money they should repay. The panel would also include two TDC members. The other four would be government or civil service representatives: one each from the prime minister’s office, the justice and finance ministries and the ministry handling state assets.

Even given public acceptance of this measure, the TDC’s remaining workload would be substantial. It would still be responsible for the initial investigation of human rights abuses large and small, as well as appropriate settlements for them. Cases of denial of rights to personal liberty, freedom of expression, public assembly, a private life, or employment, as well as far more serious rights abuses, would still remain within the TDC’s remit. However, by September, the president’s draft law had prompted street protests and a social media campaign under the slogan, Manich Msameh (“We do not pardon” in Tunisian Arabic). Campaigners argued that the bill represented an attempt by members of the political elite—and Mr Caid Sebsi is a member of the political and social elite par excellence—to accord special treatment to cronies. The draft economic reconciliation law was sent to parliament for debate in September. With Nidaa Tounes controlling a majority bloc in the legislature, but with small leftist opposition parties and the centrist Joumhouri (“Republican”) party still vociferously opposed, a lively debate was expected.

The Nahda Islamists are junior members of the ruling coalition, with one minister and three junior ministers in the cabinet. Crucially, the party has moderated its initially heavy criticism of the bill. It had said that the bill was a presidential initiative, and lacked the democratic credentials of the 2013 law, which was drafted by an elected parliament after wide-ranging discussions with civil society. Then it suggested that the bill could be acceptable, with some amendments. In October, Samir Dilou, a senior Nahda member, said that his party would propose amendments clarifying the legal criteria for granting amnesties, for example. A lawyer and former political prisoner, Mr Dilou was a member of the Nahda-led coalition government in 2012-13 that laid the groundwork for transitional justice. Meanwhile, amid the heated discussion about the proposed bill, on October 9th the Swedish Academy in Stockholm announced that the Nobel Peace Prize for 2015 had been awarded to a four-member Tunisian group of civil society representatives who helped defuse a political stand-off in 2013. The high-profile award, which drew extensive international media coverage, was interpreted by many, both inside and outside the country, as a signal that Tunisia should continue to strive for compromise and dialogue.

It increases the likelihood that some compromise will eventually be found on the economic reconciliation bill, even if this is likely to take time. Also in October, the TDC received an answer to its request for the opinion of the Venice Commission, the Council of Europe’s panel of constitutional experts, on whether the proposed law conformed with Tunisia’s new constitution of 2014, which says the state has an obligation to “apply the system of transitional justice”. On October 24th the commission indicated that the proposed law was unsatisfactory on a number of points. If the original 2013 law setting up the TDC needed improvement, “especially in the economic and financial fields”, it would fall to Tunisia’s parliament to draft any revised legislation, the commission said. This should be done in co-operation with civil society and other relevant bodies, “especially the TDC”, it added. The constitutional experts in Venice thus put the ball firmly back in parliament’s court. Controversy and debate looked set to continue well into 2016, even as the TDC in Tunis, and the four regional offices it had opened by late 2015, continued with the work of taking evidence from individual victims.

Eileen Byrne is a journalist covering north Africa from Tunis. She contributes to The Economist, the Guardian and other media. She has a postgraduate degree in Middle Eastern history from Oxford University.
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