Should we give up on the State?

The author would like to thank Helen Scanlon for her interest in her work, Tom Crick of The Carter Center who first introduced her to Liberia, Cerue Garlo and Anu Pillay who have shared their work and time most generously, and the Institute for Developing Nations at Emory University, which has funded her work on Liberia.

Abstract

In some excellent articles in the first issue of The International Journal of Transitional Justice, scholars have examined in very thoughtful ways the relationship of feminism and feminist theory to the field of transitional justice and post-conflict. This article examines some of this work and suggests ways that we might build on these insights by working more with feminist theories of the state, feminist critiques of international human rights law, and with a gendered historical consciousness of colonialism and the post-colonial state in Africa.

Transitional justice work mostly assumes that efforts can make the law work, that the state can be forced to do the right thing by women. Feminist critiques of international human rights law make one much more suspicious of the state. As we shall see, feminist theory in the past twenty years has criticised international law’s use of the state as the site of solutions to injustices experienced by women. International law has made states accountable for lack of enforcement as much as for making appropriate laws to help women. While this is a welcome move, one result can be that prescriptions for redress of the violence and inequalities women have to bear become a problem only of implementation.

This article argues that in fact, there is a fundamental conceptual misfit in terms of trying to secure women’s rights in transitional justice in terms of the state and the law only. Particularly in the context of African history from colonial times to the present, we have much to worry about in terms of relying on either the state or the law. This is particularly important in Sub-Saharan Africa where the state has so long been illegitimate. The state in Africa since colonial times has been rooted in patterns of looting and extraction very far from a nurturing welfare state that underpins many of the proposed solutions in transitional justice deliberations. While increasingly transitional justice advocates are recognising the importance of embedding justice within local structures, a truly historical gendered consciousness continues to be absent even in that literature. This article brings these criticisms of the state and law to bear on transitional justice practice in Africa.

Introduction

Christine Bell and Catherine O’Rourke (2007:23) advocate that the best intervention that feminism can make to transitional justice is by holding all participants and framers to the larger dream of ‘securing substantial material gains for women in transition’. As they suggest, feminist theorising has reshaped many aspects central to periods of transition. It has helped expand the notion of conflict to include domestic violence; has helped question the emphasis on political structures, and feminist interventions have secured women’s involvement in all aspects of the peace process. Bell and O’Rourke envisage a pragmatic role for feminism. They see it as a kind of praxis, which helps those involved in transitional justice work for the betterment of women’s lives in the complicated transitions to something that looks like peace (Bell and O’Rourke 2007:23–34).

I agree with much of the article, which highlights the ways in which feminism has transformed the field of transitional justice. However, feminism and feminist theory have more to offer than solely pragmatic interventions and approaches. Since the pioneering work of Carole Pateman and Catherine MacKinnon, feminist theorists have been sceptical about the degree to which the state can easily deliver justice for women. Indeed as Lori Handrahan (2004) has suggested, an examination of the gendered assumptions within the human rights tradition itself would be a good place to start.

The notion of politics and society operating through contracts and agreements is now the dominant theory in international law. What does this mean for women, when authors charge that the very foundations of this law, both theoretical and practical, exclude women? Contract theorists sought to replace unfettered monarchical power with a politics of consent. In The Sexual Contract, Pateman (1988) argues that the people empowered in this theory of political contract, were men bonded together through shared masculinity, conjugal right, and opposition to the role of a political patriarch. She argues that men became the new political subjects through a kind of patricide. They took power from the king and forged a new form of political alliance based on fraternity, but one with a more extensive reach; fictive brothers bonded in a public and well as a private sphere.

Pateman further argues that paradoxically, men nonetheless became agents in the political sphere precisely by virtue of their role as husbands and fathers. Men’s role as heads of patriarchal families composed of women and children under their protection gave them the authority to then contract in the public sphere. Politics thus depended on an implicit story of the family and of heterosexuality, although the latter point is implicit in Pateman’s analysis rather than explicitly examined.

In her Towards a feminist theory of the state of much the same era, MacKinnon (1991) turned her attention more explicitly to the law within a framework that has been termed radical feminism. Most crucially, MacKinnon argues that the law is itself a vehicle for gender discrimination in that law and legal structures actually create and maintain male dominance. In subsequent work, she turned her attention to domestic violence and pornography. MacKinnon argued that the very perspective of the law relating to rape reproduced forms of sexual violence in that it adjudicated rape from the male point of view. Using the law to address problems of inequality, or sexual violence against women, or to help create a new gendered social and political order is thus a fraught endeavour.

In subsequent years, feminist theorists developed the body of feminist legal theory, which now embraces many different strands including critical race and feminist theory (Lacey 2004; Bonthuys and Albertyn 2007).¹ One of the central arguments to emerge in the literature in the mid 1990s was scepticism of the centrality of the state to international law and the implications for women’s interaction with international human rights, and their ability to make it work for their interests. Karen Knop suggested that the emphasis on the state in international law creates a bias in favour of state sovereignty, which harms women. The founders of the United Nations (UN), for example, accepted the notion that autonomous states come together to make agreements and are then responsible for implementation. The sovereignty of states creates real challenges for women, especially when women are poorly represented in governance structures.

We see this problem of women’s exclusion when international law makes the state the primary vehicle of reform particularly with regard to agreements that seek to secure women’s rights. The United Nations, for example, while securing resolutions on women’s rights, such as The Convention to Eliminate All Forms of Discrimination against Women (CEDAW), also allows states to opt out of key provisions which an individual state feels are violating its own national rights (often elided with maintenance of male power) (United Nations 1979).²

In an important and searing critique of existing international human rights law, Celina Romany (1994) argued that a feminist genealogy of human rights law makes explicit the original sexual contract that the liberal state successfully masks. That is, international human rights law also depends upon private/public female/male dichotomies, which ensure that the public sphere represents the interests of men. Romany (1994:85) suggests that we understand international human rights law as a kind of ‘blown up liberal state’ with all its patriarchal biases. The notion of the sovereign state, which has to be left alone to pursue justice within international legal resolutions and conventions (such as CEDAW), she argues, is in fact a recipe to allow men to continue to abuse women. She asserts that international law has to hold states accountable for violence to women whether in the household or in public, because such violence is not random: the risk factor is being female. Romany thus concludes with a call for the feminist stance of ’embodied objectivity’ which recognises explicitly, indeed through the frame of intersectionality, how knowledge is produced through particular political gender/race/class structures, and seeks to both reveal those structures and to combat them.

More recently, Ni Aolain and Rooney (2007) suggest that a frame of intersectionality can help redress the gender bias in transitional justice mechanisms. Intersectionality puts class, race, and gender together as a way of revealing the special discrimination faced by women and also recognises the multiple and overlapping sites of subjection (Hill Collins 1990; Crenshaw 1991). Using an intersectional lens, Ni Aolain and Rooney show that transitional justice for women requires a very large and long field of vision, which extends beyond the realm of truth commissions, into the complexity of enforcement of laws and decisions, awareness of silences about masculinity, and the need to avoid stereotypes of women as natural peacekeepers. This approach has much to recommend it. I am wary, however, of invoking one theoretical feminist or indeed any other model as a fix for the challenges in securing women’s equality and full participation in building post-conflict societies. For instance, Puar (2007), while sympathetic to the innovations that intersectional theory allowed for, has also sought to move beyond intersectionality which she sees as relying upon static and rigid conceptions of class, race and gender rather than seeing them in a more unstable and historic tension.³ In this article, I seek to bring the messy worlds of history together with the clarity offered by theory.

As Ni Aolain and Rooney point out, transitional justice mechanisms have tended to focus on the law and government to implement justice and to secure gains for women. The authors call for a wider field of vision for transitional justice, which moves from the merely legal to one that also focuses on implementation of the law. This focus is important, as it is precisely the details of how to carry decisions forward, or the lack of attention to such details, that can lead to the sidelining of women in the final stages of transitional justice processes, even if they have been more involved in earlier stages. Certainly we need to make sure that reparations given to women are actually implemented, and that the gains secured through some Truth and Reconciliation Commission (TRC) processes are realised. We also need, I think, to move beyond focusing on the state or government as the sole site for redress for women.

Groups are beginning to argue that traditional authorities need to be involved in transitional justice processes. For example, the United Nations Peacebuilding Commission argued in a recent paper that a broad conception of justice and one that involves so-called traditional authorities is necessary to ensure the success of transitional justice (United Nations Peacebuilding Commission – Working Group on Lessons Learned 2008). The Liberian Truth Commission, among other such bodies, has also advocated the use of indigenous models of conflict resolution as a way to encourage reconciliation (Transitional Justice Forum 2009).⁴ However, as Sally Engle Merry’s (2006) work shows, human rights advocates tend to see traditional authorities and communities as innately hostile to women’s rights. Engle Merry suggests that part of the problem lies in the transnational human rights community’s misunderstanding of culture as rooted in unchanging cultural norms. Transitional Justice advocates have thus tended not to regard traditional forms of conflict resolution as sites to advance women’s human rights. They tend to see the state as the place where women’s rights can be articulated in law and practice.

This is where an historical consciousness of African gender histories is germane (Oyewumi 2003). Below, I discuss the way that the early imperial era as well as that of colonialism caused women’s rights to decline. This all points to a much less sanguine picture of how rights might be elaborated, and it certainly disrupts one’s confidence that the state and the law are the place to secure women’s rights.

Colonial Gender Histories

Albert Memmi (1991) among others long ago pointed out that the colonial state was an illegitimate state created to serve colonial interests and to sap colonised people of their wealth, their self-respect, and their identities. As the now somewhat unfashionable school of under-development theory also showed, the economies of what was then called the Third World were constructed precisely to serve the benefits of Europe: Europe’s rise was premised on Africa’s demise. From as early as the move to legitimate trade in the nineteenth century, societies found their fortunes linked to European demands for goods, and to Europe’s ability to enforce unequal taxation on African goods (Rodney 1972; Wright 1997). Moreover, as a number of scholars have shown, the colonial eras reworked gender relations in African societies largely to the detriment of women.

It is not the purpose of this article to chart women’s many roles in politics and society in the pre-colonial order; other scholars have done that very well (Amadiume 1987; Okonjo 1976; Boserup 1970; Ifeka-Moller 1975; Van Allen 1976). However, I do want to stress, in the context of transitional justice work, how important it is to know that women had various forms of status as farmers, traders, mothers, elders, members of secret societies, and religious figures in the pre-colonial era, and indeed often in the present, although such roles seem sometimes unintelligible to human rights frames (Hodgson 2003; Englund 2006). Colonists and agents of the colonial state largely misunderstood the complexity of gender relations in the societies they encountered. Yet, those colonial interpretations, or misinterpretations, ultimately rendered the position of African women ‘legible’ to the rest of the world. The legibility that emerged was of the African woman as a ‘beast of burden’ rendered so through her farming responsibilities, the presence of polygamy, and of bride price, or lobola, in the Southern African context (Oyewumi 2003). I would argue that the remnant of this perspective forms the hidden sediment of much of the international work on gender-based violence in Africa.

The early colonial era reshaped women’s role in agriculture, their political power, and even their access to the colonial state to their disadvantage. Men took over the growing and marketing of crops which were formerly understood as women’s crops, but then became lucrative on the market (Martin 1984). In the early twentieth century, in regions where the slave trade had dominated the export economy for so long, but was then outlawed, increasing numbers of women were put to work in agricultural labour as slaves, although often also married to their owners.

As a number of authors have documented, women fought to free themselves and to return to their natal families, but found it hard going to make the case to colonial courts, which tended to send them back to their owners (Klein and Roberts 2005). To some extent then one could see the colonial state, be it in French West Africa, in present day Mali and Niger, or in Eastern and Southern Africa, as one which upheld certain forms of patriarchal control over women. The colonial state and African male elders cooperated to control the movement and independence of women, with the state passing laws to hamper women’s movements to towns, to mines, and helping to create customary laws which bolstered the power of male elders (Chanock 1998; White 1990; Byfield 2002; Lovett 1989).⁵

In Wretched of the Earth, Frantz Fanon (1967) cast a jaundiced eye at the coming of independence to Africa. He predicted that the new post-colonial state would be independent in name only, ruled by individuals who had been tutored in European schools to cleave to the ideologies of Europe and to reject the solutions offered by indigenous African models of social and political organisation. Indeed as Basil Davidson (1992) lamented, the notion that the Asante Kingdom might be a legitimate model for governing Ghana on independence had become, by the 1950s, a virtually unthinkable idea. The state that colonialism bequeathed to independent Africa, was thus one which was premised upon pillage and, in the case of the settler colonies of South Africa, Kenya, and Rhodesia, for example, was organised precisely to make Africans serve the economic and psychic needs of the white minority. The post-colonial state was also, for all the reasons outlined above, one that continued to uphold many of the discriminatory practices against women that colonialism had helped institute, despite the promises of the independence movements.

Indeed as Mojubaolu Olufunke Okome (2003:82) argues, ‘In both its colonial and post-colonial forms, the African State has discriminated consistently against women’. In the late 1980s, Parpart and Staudt (1989:5) pointed out that ‘everywhere the political elite is male’ and stated that women generally had marginal access to the state. The 1990s witnessed the entrance of women in Africa into formal politics in dramatic ways. Transitions ranging from the ending of apartheid in South Africa in 1990, to the genocide in Rwanda in 1994, led to a realignment of formal politics. Countries emerging from conflict witnessed some of the most dramatic entrances of women to politics. As Aili Tripp has noted ‘[T]hirteen of fourteen post-conflict countries have banned discrimination based on sex’ (Tripp et al. 2009:6). Women claimed some one-third of parliamentary seats in a host of countries such as South Africa, Rwanda, and Tanzania. It is unclear, however, whether the presence of women alone is sufficient to transform the gender ideologies of a state to one in which men and women can be equal citizens. In the 2000s, women’s activism continued to reshape politics. During the stalled Liberian peace process, women organised across religious and ethnic lines in an attempt to force men to make peace.

Moreover, Liberians subsequently elected Ellen Johnson-Sirleaf in 2005 as the first democratically elected woman as head of state in Africa.

President Sirleaf has made securing women’s rights one of the pillars of her administration, passing laws against rape and domestic violence, and a law allowing women to inherit property. Yet, the ability of the state, especially a post-conflict one, which is after all where transitional justice works, to implement reforms remains very challenging. Policy documents rely on the state as the imagined goal for addressing ills, but point to the inadequacy of state and legal structures to implement laws and to transform society (Vann 2002).⁶ In addition, given the history of the state in the last century in Africa, one wonders at the wisdom of using the state as the major vehicle for transformation. Recent work in African Studies suggests that people see the state (both the colonial state, as well as many of its contemporary forms) as malevolent and capricious, with a vampire-like quality of extraction (Crais 2002; Geschiere 1997). Women’s collective action and extra-state political organising has proved to be a much more effective setting for addressing women’s rights than the state. I propose that advocates of transitional justice look to new sites for the transformation of societies; women after all are already doing things for themselves.

Conclusion: Models that take women’s rights seriously, but which work outside of the state

Initiatives for peace and post-conflict rebuilding are being forged in partnerships between different religious traditions, and in projects rooted both in ongoing work by women, and in new partnerships between non-governmental organisations (NGOs) and local women’s groups (Miller 1993:19). In Liberia, UNIFEM’s (United Nations Development Fund for Women) former gender liaison to the Liberian TRC, Anu Pillay, and Cerue Garlo of Liberia’s WONGOSOL (the Women’s NGO Secretariat of Liberia), have collaborated in an ambitious and meaningful project to create fora in which women can discuss their agendas for society and for the future. In Monrovia, at Mother Patern College of Health Sciences, faculty emphasise empowering women through education, coming up with their own diagnoses and definitions of what needs to be done, and generally working to move beyond prescriptions as to how to accomplish change.

The women of West Point settlement in Monrovia have formed the West Point Women’s Action Group to try to combat rape and other violence that plague the settlement. The organs of the state are absent in West Point; no police visit, rapists go unpunished, no formal legal structures protect West Point (International Rescue Committee 2008; Dunning 2008).⁷ If women are to rely on the state for aid, it will be a very long time coming. Moreover, Liberia is not alone. Even with great commitment by a president who does take women’s rights seriously, the challenges inherited by post-conflict nations overwhelm the law and the state. Fixing these mechanisms will take time. In the meantime, advocates of transitional justice need to help women and men where they are currently located: without access to law, judiciary or medical care – all the potential wonders of the state. This is a burgeoning field, and one in which different transitional justice groups are beginning to work.

The International Centre for Transitional Justice (ICTJ) and The Carter Center, among other groups, are beginning to work beyond formal legal structures, even as they also seek to strengthen the law. The Carter Center organises their rule-of-law project in Liberia around support for legal reforms initiated by President Ellen Johnson-Sirleaf. The Carter Center works with lawyers, the government, and the judiciary to try to make the law work better. However, the Carter Center also works with local youth groups to try to raise consciousness in rural areas around issues of legal rights and gender violence. The Bong Youth Association, for example, holds drama performances in Bong County as a way of engaging elders and youth in discussions around violence, gender, and community. The realm of education, both in formal schooling and, as importantly, in popular culture is, I think, a very fruitful realm of work, and one to which those of us writing on transitional justice need to begin paying more attention.

Perhaps because the more recent transitional justice approaches began with truth commissions, and are part of a wider field of international law, the state has remained the key field for bringing societies through conflict and beyond. The perspective that the state is the main site of transformation is so dominant, and ingrained in political theory and international law, that it seems perhaps peculiar to even venture the opinion that the state might not be the best agent for post-conflict transformation. However, this reliance on the state might in fact be a bad thing for women in much of Sub-Saharan Africa at the present time. African history of the last century or so, points to ways in which Africans saw the colonial and post-colonial state as rapacious and illegitimate. What good work can transitional justice do when it works within a framework of law and the state that intrinsically does not have much legitimacy? I think we need to rethink how we do much post-conflict work, particularly around the issues of combating sexual violence and trying to bolster women’s rights.

As we come to recognise the long-term processes that comprise traditional justice, we need thus to be cognisant of history. We need to know the history of the particular country, of the ravages of colonialism and the disappointments and violence of the post-colonial period even prior to the conflict that preceded the recent moves to peace. Such recognition and understanding, if always partial, will help us build peace and security in the places which work, the religious institutions, the village councils, women’s groups, in the actual structures of the everyday.

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Notes

1. For a short history of feminist legal theory, see Lacey 2004:13–56. A helpful compendium and discussion of feminist jurisprudence with a particular focus on South Africa, is Bonthuys and Albertyn 2007.
2. CEDAW, adopted by the General Assembly resolution 34/180 of 18 December 1979, came into force on 3 September 1981. See Article 28, which deals with reservations. For criticism of CEDAW, see Sullivan 1995 and Mayer 1995.
3. See Puar 2007. While Puar is sympathetic to intersectionality, and particularly to the way it has pushed feminist scholarship to think in more complex ways, she uses the term assemblages to invoke a more unstable, messier relationship of the usual race/class/gender triad.
4. See Huyse 2008.
5. The formative work on this is Chanock 1998. On Kenya see White 1990. For work which suggests more agency for women, see Byfield 2002. See also Lovett 1989.
6. The general report on gender-based violence world-wide, Vann 2002, is a very good example of this. See particularly the case study reports, which document the fragility of the state.
7. For reporting on the women of West Point, see International Rescue Committee 2008 and Dunning 2008.