International tribunals are often perceived by the transitional justice legal scholarship as an opportunity for individuals to ensure their memories are entered into an historical record. The ‘legacy debate’ surrounding the contribution that tribunal archives should have to transitional periods are commonly understood as providing a historical legal record of the ‘facts’ of the atrocities committed. However, such historical records of the legal ‘facts’ often orientate around a linear constructed narrative of mass human rights violations which can condense the complexities of past violations into an overly simplified account of the past and present. This presentation provides a novel conceptual enquiry into witnessing and collective memory by challenging the perception that transitional justice archives are passive repositories of history. Instead, suggesting the ICTR archives as a useful site to explore the discursive conditions of witnessing. In doing so, the presentation summarises the thesis’ original conceptual framework which engages with Giorgio Agamben’s concept of ‘Witness’ and Paul Ricoeur’s concept of ‘Memory’. The discussion then details the thesis’ approach to method engaging with Michel Foucault’s thought on ‘Discourse’ and ‘Subjectivity’ and outlines the data to be analysed. The presentation explores the potential for understanding legal archives as discursive spaces in which the subject of the witness is constructed, and legitimate meaning and knowledge of past human rights violations are constituted. In doing so, the paper foregrounds the need to understand international legal institutions as important sites of memory construction. The latter part of the presentation discusses some of the challenges of conducting archival research of an international criminal tribunal.
Legal Syncretism in Constitutional Rights in Africa: A Comparative Study of Nigeria, South Africa, and Ethiopia
Berihun Gebeye, Central European University
Human rights have been an important part of the constitutional design in Africa. Even if human rights are universal and are consequently applicable to everyone everywhere, the way they figure in the constitutional design and manifest themselves in the judicial practice makes them syncretic in Africa. This is due to the fact that constitutional rights broadcast and channel the universalist ethos of human rights while incorporating the indigenous tenets of rights, be it customary or religious, in the same constitutional space. As a result, constitutional rights are the outcomes of acceptance, rejection, reinterpretation, and transformation of the liberal and indigenous notion of rights in constitutional politics. Accordingly, the substance of constitutional rights is contingent upon a number of considerations at a given time and space, and concomitantly, their liberal or indigenous conceptions can wax and wane. By taking women’s rights as one example of constitutional rights, on the one hand, and Nigeria, South Africa, and Ethiopia, as case studies, on the other, I will demonstrate how constitutional rights in Africa are syncretic and show its repercussions on constitutional government.