Edited by Thomas Probert and Christof Heyns

2020
ISBN: 978-1-920538-86-6

ICLA contribution: Edited by Thomas Probert and Christof Heyns

About the publication

National commissions of inquiry in the aftermath of violations of human rights, including violations of the right to life, are a common feature of the African legal and political landscape. There is often a fair measure of scepticism or caution about their use, and with good reason. They can serve as convenient instruments to avoid accountability, rather than to achieve it. However, very little hard evidence is available upon which the performance of such commissions can be assessed, and hence impressions of their utility are often largely anecdotal.

For the purposes of this book, researchers went to six countries in Africa—Chad, Burkina Faso, Kenya, Malawi, South Africa and Nigeria—and conducted in-depth investigations of commissions of inquiry that have been held there, interviewing those directly involved in the proceedings and those working on the issues since, including victims, lawyers, investigators and Commissioners. Drawing on this research, the book argues that commissions of inquiry should not be contrasted with courts or with criminal trials, since their proper place is at a different stage of the investigative process. Rather than replacing criminal processes, commissions might guide whether and how they should take place. Commissions can be cathartic events for victims or families; they can demonstrate that human rights are a priority for the state and thus lay the foundations for the rule of law; and they can make broader recommendations about what should be done. In short, in certain circumstances, they can serve to enable a broader concept of accountability.

Praise for this publication

“A rich collection of well-researched chapters made up of normative analysis and case studies, which presents a much-needed scholarly contribution to the question of accountability for violations of human rights—particularly the right to life—through a means other than a routine criminal process, a question with which the African Commission on Human and Peoples' Rights wrestled in its Study on Transitional Justice that was the basis for the African Union Transitional Justice Policy. The insights it offers on why, how and when Commissions of Inquiry in Africa facilitate accountability are profoundly informative not only for scholars but also for policy makers and practitioners.”

Solomon Ayele Dersso
Chairperson, African Commission on Human and Peoples’ Rights

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Table of Contents

Background and acknowledgments
Members of the research team

1. Introduction: The role of national commissions of inquiry in securing the supreme human right
   Thomas Probert & Christof Heyns
2. The concept of accountability and its importance for the protection of the right to life
   Thomas Probert
3. ‘Lawfare’, instruments of governmentality and accountability, or both? An overview of national commissions of inquiry in Africa
   Meetali Jain
4. Commissions of inquiry and social solidarity in the African context
   Christof Heyns
5. Shedding all the light? The Commission of Inquiry into the Crimes and Misappropriations of Hissène
   Habré in Chad
6. A murdered journalist and a crisis of faith in the judiciary: The Independent Commission of Inquiry into the Death of Norbert Zongo in Burkina Faso
   Thomas Probert
7. Public hearings and secret envelopes: The Waki Commission as a case study of accountability in Kenya
   Anyango Yvonne Oyieke
8. A slow but steady search for justice: The Commission of Inquiry into the July 2011 ‘riots’ in Malawi
   John Kotsopoulos
9. The rose that grew from concrete: The Commission of Inquiry into policing in Khayelitsha, South Africa
   Meetali Jain
10. The (im)partiality of justice: The challenges of investigating the clashes between the Islamic Movement of Nigeria and the Nigerian army in Zaria, Nigeria
    Anyango Yvonne Oyieke
11. Commissions of inquiry: Valuable first steps towards accountability or smokescreens for inaction?
    Thomas Probert & Christof Heyns

Annex: A list of commissions of inquiry in Africa, 1990-2016