Normative Spaces and Legal Dynamics in Africa

Katrin Seidel, Hatem Elliesie

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000060966
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

African legal realities reflect an intertwining of transnational, regional, and local normative frameworks, institutions, and practices that challenge the idea of the sovereign territorial state. This book analyses the novel constellations of governance actors and conditions under which they interact and compete. The work follows a spatial approach as the emphasis on normative spaces opens avenues to better understand power relations, processes of institutionalization, and the production of legitimacy and normativities themselves.

Selected case studies from thirteen African countries deliver new empirical data and grounded insights from, and into, particular normative spaces. The individual chapters explore the interrelationships between various normative orders, diverse actors, and their influences. The encounters between different normative understandings and actors open up space and multiple forums for negotiating values. The authors analyse how different doctrines, institutions, and practices are constructed, contested, negotiated, and adapted in translation processes and thereby continuously reshape Africa's multidimensional normative spaces.

The volume delivers nuanced views of jurisprudence in Africa and presents an excellent resource for scholars and students of anthropology, legal geography, legal studies, sociology, political sciences, international relations, African studies, and anyone wishing to gain a better understanding of how legal constellations are shaped by unreflected assumptions about the state and the rule of law.

Part I

Constructing normative spaces

1 ‘Forensic Fetishism’ and human rights after violent conflict

Uncovering Somaliland’s troubled past

Markus Virgil Hoehne and Shakira Bedoya Sánchez

[T]he dead body is valuable insofar as it is a ‘body of evidence’, or, more specifically, the ‘evidence of crime’ – corpus delicti – bearing the marks of a person’s experiences before death (tortures) and the kind of death (homicide) he or she endured, and insofar as it can be used for political purposes or is the object of mourning through which a community is consolidated and reborn.¹

Introduction

Somaliland, in Northwestern Somalia, unilaterally declared its independence from Somalia in 1991 after a decade of massive human rights violations and civil war in the region. First reports on the crackdown of government forces on local civilians, particularly in the late 1980s, estimated the number of civilians killed at between 5,000² and 50,000.³ More recently, Somaliland human rights activists have claimed that up to 250,000 people were killed in the war the Somali government waged against its own people in the northwest.⁴ Similar numbers, ranging between 100,000 and 200,000, have also been cited by Somaliland officials in their reports about this matter.⁵ Scholars have also recently claimed that ‘as many as 100,000 people’ had been killed, however, citing oral sources that are vague.⁶ Many of the dead are buried in mass graves (sometimes anonymously), or are still considered missing. Somaliland has existed for over 25 years and succeeded in becoming largely stable, peaceful, and democratic. It functions as a ‘de facto’ state,⁷ which, however, does not enjoy international recognition. Officially, the country is subsumed under the name of ‘Somalia’, which many Somalilanders perceive as an insult. Globally, Somalia stands for ‘state collapse’ and ongoing war (including terrorism and counter-terrorism). Locally, it also stands for the history of the past abuses, from which Somaliland supporters wish to distance themselves; some demand accountability for past atrocities. The first systematic investigations into past crimes committed by Somali government officials began around 2000, when the Centre for Justice and Accountability (CJA) in San Francisco assisted a group of Somali plaintiffs who had fled Somalia and become American citizens to open proceedings against General Maxamed Cali Samatar, the former Somali minister of defence and subsequently the prime minister.⁸ General Samatar found refuge in the US in the 1990s. The Somali plaintiffs, supported by CJA, accused him of having ordered the attack in 1988 of the Somali army against civilians in Hargeysa and Burco, the two largest cities in Northwestern Somalia. During the course of the legal proceedings, which dragged on for more than a decade, contact was established between Somali plaintiffs and forensic experts from Peru, who began forensic investigations in Somaliland in 2012. The idea of CJA was that these investigations could produce evidence that could be used in future court cases against former Somali officials in the US. As of 2020, forensic experts continue to hold international field schools on an annual basis, advertised under the title ‘Uncovering Somaliland’s troubled past’, to exhume mass graves and analyze human remains, and these efforts are supported by the Somaliland government. Yet, our ongoing ethnographic research shows that these forensic operations are highly challenging owing to the lack of proper equipment, facilities (laboratories etc.), and local expertise needed for forensic work. Added to that, the local population often has little information and understanding about the work of the foreign forensic experts, and misunderstandings lead to tensions between locals, forensic experts, and government officials. We argue that the forensic endeavours in Somaliland shed light on the contemporary role of forensic anthropology in general, but in particular on the phenomenon of forensic fetishism (discussed below). They show the contested nature of ‘truth’ across a spectrum of normative spaces within which forensic interventions take place and which are variously intertwined (e.g. ranging from Somaliland and the US to other locales on the globe where forensic experts come from and/or practice).

War crimes and human rights investigations have made a shift from the traditional approach reserved for the testimony of human witnesses to an approach that privileges forensic science. What was previously written, filmed, recorded, and exhibited in verbal or photographic testimony (the dominant form of testimony, e.g. during the Nuremberg trials) has now been replaced by the attribution ‘of an inherent power and a certain agency to inanimate objects or technologies’.⁹ The logic behind this is that

unlike the testimony of victims, scientific evidence pronounced by expert witnesses is more difficult to contest; that bullets and missile casings, ruins, medical and autopsy reports and tissues showing the burn mark of white phosphorus presumably cannot be undermined by any suspect political subjectivity… [because] an evidentiary truth seems to linger, fossilized in the object, ready to be unpacked by science.¹⁰

The process by which ‘bodies’ are constructed as forensic evidence is twofold: According to Renshaw,¹¹ it entails a moment of ‘disembodiment’, as the human body ‘loses its integrity and becomes a sum of materials and tissues upon which are recorded the marks of certain acts such as injury and disease, which can be decoded to reconstruct an individual’s death’. At the same time, it implies a process of ‘hyperembodiment where any personhood and socially meaningful identity is removed from the discursive space occupied by the body, leaving space only for physical characteristics to be enumerated’.¹²

When the complete grave is exposed and the total number of bodies are visible, the episode of killing is seen in its totality and the bodies are viewed as collective, forming a tableau that communicates the scope of the event to the observers. This simultaneously materialises both the scale and the particularity of the event.¹³

Forensic fetishism does not reside, as Weizman writes,¹⁴ in the Marxist notion of the mystification of objects but rather in our contemporary ‘attraction to the objects of violence’. In this sense it is akin to (sexual) fetishism that is related to the belief in the inherent value or power of an object. Weizman understands ‘forensic fetishism as the return to the object, to the non-human in human rights work’.¹⁵ The origins of this fascination with objectification and the human body can be traced back to the beginnings of physical anthropology as a discipline. Around 1900, some anthropologists such as Rudolf Virchow and Felix von Luschan in Germany insisted on the scientific power of bodily objects, bones, and particularly skulls that were collected in the colonies and sent to them by military officers. In their eyes, measuring and classifying these human remains was a superior scientific method that could help to understand human history, evolution, and contemporary race relations.¹⁶

Contrary to the seemingly objective character ascribed to bones by physical and forensic anthropologists, we wish to emphasize in line with much of the critical literature generated on this matter by social scientists and historians that mass grave exhumations resulting from episodes of violence constitute a highly political endeavour. In addressing the political side of exhumations, it is impossible overlook the fact that forensic science involves a process of re-association of the disarticulated mortal remains of victims that takes into account not only the original acts of killings, but also the ongoing treatment of victims – by the perpetrators and in humanitarian responses.¹⁷ This cross-temporal aspect opens up and creates a number of new forums and (normative) spaces that can reach far beyond the local or ‘ethno-cultural’ setting.¹⁸ In (post-)conflict settings, as those in Rwanda, the Congo, Uruguay, Peru, Cambodia, and of course Somaliland, the bodies in the graves are not just ‘dead’. Although death is officially conceived as a point in time (and frequently as a kind of ‘end point’), ‘historical and ethnographic studies give plenty of examples of how death can be imagined as something with a duration, something which partakes in life’.¹⁹ Exhumations change the temporality of death. Renshaw found that ‘buried bodies have a power to effect change if they are “gathered” through an act of exhumation’.²⁰ In this way they are ‘revived’ and attributed with new social and political lives.²¹ Moreover, even if dead bodies are absent, because they are (still) unexhumed or missing, they possess a huge potential to fire the imagination of the living. The general issue of interpreting dead bodies and questions of (partial) truth is outlined by Ferrándiz, who argues that

[s]tate institutions often become involved in the exhumations in one way or another – sometimes in order to prevent them. On other occasions the work is done by international or grassroots organizations. The regime responsible for the dead bodies becomes the subject of heated social debates challenging hegemonic versions of an uncomfortable past and provoking disputes about the politics of victimhood.²²

Somewhat in contrast to this critical perspective on dead bodies as ‘subject of debate’, some – particularly forensic anthropologists – argue that ‘forensic analysis is today the most effective ritual procedure to allow things to speak for themselves [emphasis added]’,²³ as, for instance, the famous forensic expert Clyde Snow would have it when he told judges during a trial in Argentina in 1985 that ‘in many ways the skeleton is its own best witness’.²⁴ This belief in the ‘objectivity’ or ‘agency’ of the dead bodies plays a key role in the production of facts and fetishes. In relation to that, ‘the dead seem to have become inexhaustible batteries for political power’.²⁵

The problem lies in the assumption that fundamental truths are written on the body as if ‘bones never lie’. This assumption begs the questions: ‘[W]hat can it [the body] tell us about the social context in which we find it? What can it obscure?’²⁶ Fetishizing bodies can ‘ultimately deflect attention from the social condition in which bodies are shaped’.²⁷ The point is to understand the substanc...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Contents
• Acknowledgements
• List of contributors
• Prologue Normative spaces in Africa: constructing, contesting, renegotiating, and adapting dynamics
• Part I Constructing normative spaces
• Part II Contesting normative spaces
• Part III Re-negotiating normative spaces
• Part IV Adapting normative spaces
• Epilogue Beyond a linear model of law in space and time
• Glossary of acronyms
• Index