To those who are tempted to turn human rights into a crusade, and thus become fundamentalists of the neoliberal era, I would like to put forward three propositions:

• Do not conflate criminal with political violence. Political violence may be criminal, but it is more. Political violence has a constituency.

• Political violence is seldom a standalone act. It is most often part of a cycle of violence. When it comes to a cycle of violence, victims and perpetrators often change sides. There is no permanent victim and no permanent perpetrator.

• Political violence is not just driven by perpetrators. More than anything else, it is driven by issues.

Let us look at the South African transition. The Cold War had ended and external involvement in South Africa was at an all-time low. Second, the internal situation had reached an impasse. Both sides dropped their maximum goal – victory or revolution – so as to give the political process a chance.

Each side de-demonised the other; yesterday’s enemies became today’s adversaries. The difference between an adversary and an enemy is this: You can talk to an adversary, but you have to eliminate an enemy. Finally, when the fighting ended, there was no judicial process. The way ahead was forged through a political process.

Apartheid did not end in the courts. Its end was negotiated at the conference table. It could not have been otherwise, for at least one reason. A court trial shares a feature in common with a military contest: The winner takes all.

In a court of law, you are either guilty or innocent; you cannot be both. Yet, in a civil war or a civil conflict, neither side is wholly innocent nor wholly guilty. Where violence is not a standalone event but an episode in a cycle of violence, each side has its victim narrative.

I want to suggest that South Africa offers us deeper lessons. To begin with, it calls on us to broaden and deepen our notion of justice. The conventional belief is that justice and reconciliation are opposites, alternatives.

I suggest we think of two types of reconciliation: One cosmetic, the other meaningful. Reconciliation alone will give you a ceasefire; only reconciliation combined with reform has the possibility of showing the road to a durable peace.

Meaningful reconciliation is not the opposite of justice but the complement to justice. Meaningful reconciliation is only possible if reform identifies and addresses central issues in the conflict.

I want to argue that the issue for us today, the big issue, is political violence. This violence is testimony that we have failed to come to grips with the legacy of colonialism – and the challenge of decolonisation.

I shall take the example of Darfur and then relate it to the Rift Valley in Kenya. The violence in Darfur was multi-layered. Its background was at least threefold.

First, the deep background, which is colonial. Key to British colonial strategy was to create tribal homelands. This strategy unfolded in neat steps. Briefly put, the claim was that every “tribe” had its original homeland, even if “tribes” tended to get mixed up in recent times.

In every colony, British officials tried to draw homeland boundaries and tried to get tribes to return to these. This strategy politicised ethnicity and laid the ground for ethnic conflict.

ALSO READ: South Sudan and its unending bloody conflict

The twist in Darfur had to do with relations between peasants and nomads. Nomads have a soft notion of borders. They move across borders. So the British decided that nomads who move over large areas of land should have no tribal homeland. These were the nomads of northern Darfur, the northern Rizeigat.

The intermediate background was that of an ecological crisis unfolding over four decades, from the 1940s to the 1980s. In that period, the Sahara moved southward, approximately 100 kilometres. Nomads moved south in search of water.

The result was a clash between peasants and nomads in the lush mountains of Jabal Merra. Peasants claimed this was their tribal homeland. It was a notion of rights that evoked the precolonial era but was crystallised in the colonial period.

Nomads said they were Sudanese and that it was their national right to access and live off the land. It was a post-colonial notion of right, where right was based on citizenship, not ethnic identity.

How is this relevant to Kenya? Think of the violence in the Rift Valley. The deep background is colonial. The details are different.

But the questions are the same: Who has right to land? This is not a question of right against wrong, but right against right. In contention are two sets of rights, each with a different history; one colonial, the other post-colonial; one tribal/ethnic, the other national. The perpetrators may be different, but the issues are not so different.

Can the courts solve this problem? The court is not a site to make rules; it is a site to apply rules. It is a site to settle questions of right and wrong, crime and punishment, victim and perpetrator. It is not a site to deliberate on two different histories, where each side is right on its own terms.

The only way forward is to make a new rule to bridge the two. This is a matter for legislatures, for negotiations, for constitutional conventions – not for criminal courts.

Even if the court focuses on identifying perpetrators on both sides, it will do so at the expense of highlighting the issues around which the violence is mobilised
In Kenya, there have been two significant experiences over the past few decades.

The first was the national movement for constitutional reform. A national coalition was forged across ethnic and ideological boundaries. My friend Willy Mutunga, today Kenya’s Chief Justice, called it “constitution-making from the middle.” This attempt at political reform was an exemplary effort, one that inspired the region. But the country failed to build on it.

Instead, it turned to a contradictory initiative – “don’t be vague, go to The Hague.” The Hague initiative undercut the gains made in the earlier period. The national movement built around the constitutional reform process was split along ethnic lines, as each side mobilised in pursuit of revenge, rather than reform, and a different breed of lawyers took over.

In sum, the “international community” —along with an influential internal constituency — distorted the internal political process by threatening to give priority to court trials. It is of secondary significance whether these trials were to be internal or international.

The Waswahili say: “Elimu haina muisho.” It is never too late to learn.

Prof Mahmood Mamdani is director of the Makerere Institute of Social Research, Kampala. The above is an excerpt from Peace, Justice and Ethnic Conflict, the first talk in the University Debate Series, organised by The EastAfrican, at Nairobi’s Kenyatta University on February 14.