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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
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Rutgers
Journal of Law & Public Policy
V OLUME 9 S PRING 2012 I SSUE 3
Current Issues in Public Policy
© 2012 by Rutgers University School of Law – Camden
ISSN 1934-3736
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
Rutgers
Journal of Law & Public Policy
V OLUME 9 S PRING 2012 I SSUE 3
CONTENTS
P OST -R EFERENDUM S UDAN : T HE N ATION -B UILDING
P ORJECT AND ITS C HALLENGES .................................... 505
C HRISTOPHER Z AMBAKARI
T
HE
P
RICE OF
J
USTICE
: H
OW THE
C
APERTON
S
TANDARD
FOR
J
UDICIAL
R
ECUSAL
F
ELL
S
HORT
, B
UT
O
PENED
D ORR FOR R EFORM OF THE R ECUSAL S TANDARDS THE
A NYWAY ...................................................................... 545
M ARISA M C G ARVEY
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
POST-REFERENDUM SUDAN: THE NATION-
BUILDING PROJECT AND ITS CHALLENGES
Christopher Zambakari, B.S./MBA
Candidate for Law and Policy Doctorate (LP.D.)
College of Professional Studies
Northeastern University
Boston, Massachusetts
Zambakari.c@husky.neu.edu
INTRODUCTION
The Comprehensive Peace Agreement (“CPA”),
signed on
January 9, 2005, brought an end to the brutal civil war (1955-
1 The author would like to thank Divine Muragijimana (Brooklyn
College), Ana Afsharinasab (Arizona State University), Pamela Gutman
(University of Phoenix), and Andrew Dodemaide and members of the
Rutgers Journal of Law & Public Policy’s Editorial Board for their insightful comments and constructive feedback on the earlier draft of this article.
2 Christopher Zambakari is a candidate for a Law and Policy Doctorate
(LPD) at the College of Professional Studies, Northeastern University,
Boston, Mass.
3 Comprehensive Peace Agreement Between the Government of the
Republic of the Sudan and the Sudan People's Liberation Movement/Sudan
People's Liberation Army, Sudan-SPLM/A, at xi, Jan. 9, 2005, available at http://www.sudanarchive.net/cgi-
505
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
1972; 1983-2005)
that engulfed Sudan since its independence in 1956.
The CPA was the immediate culmination of the
negotiations that ended the hostility between the National
Congress Party (“NCP”) and the Sudan People’s Liberation
Movement/Army (“SPLM/A”).
political dispensation and landscape in South Sudan. Over 2 million people have died and 4 million have been uprooted due to the civil war.
In fulfilling the mandate of the CPA, a referendum on self-determination
2011, and 98.83 percent of South Sudanese effectively voted to secede from North Sudan.
The General Assembly of the United
Nations admitted the Republic of South Sudan into the community of nations as the 193rd member of the United
Nations on July 14, 2011.
The root causes of the war included disputes over resources, the role of religion in the state, self-determination, bin/pagessoa?a=pdf&d=Dl1d36.1.1&dl=1&sim=Screen2Image [hereinafter
Comprehensive Peace Agreement].
4 Background Note: Sudan, U.S.
D EP ’ T OF S TATE (Apr. 8, 2011), http://www.state.gov/r/pa/ei/bgn/5424.htm.
5 The World Fact Book: Sudan, U.S.
C ENT .
I NTELLIGENCE A GENCY , https://www.cia.gov/library/publications/the-world-factbook/geos/su.html
(last updated Nov. 10, 2011).
6 Background Note: Sudan, supra note 4.
7 Estimates for the Total Number of IDPs for all of Sudan (as of January
2011), I NTERNAL D ISPLACEMENT M ONITORING C ENTRE , http://www.internaldisplacement.org/8025708F004CE90B/%28httpCountries%29/F3D3CAA7
CBEBE276802570A7004B87E4?opendocument
(last visited Feb. 6, 2012);
The Background to Sudan's Comprehensive Peace Agreement, U.N. M ISSION
IN S UDAN , http://unmis.unmissions.org/Default.aspx?tabid=515 (last visited
Feb. 6, 2012).
8 Comprehensive Peace Agreement, supra note 3, at 1. This specific agreement was named the Machakos Protocol and was dated July 20, 2002.
9 SSRC Announces Final Referendum Results, S.
S UDAN R EFERENDUM
C OMM ’ N , http://www.ssrc.sd/SSRC2/ (last updated Feb. 8, 2011).
10 UN Welcomes South Sudan as 193rd Member State, U.N.
N EWS C TR .
(July 14, 2011), http://www.un.org/apps/news/story.asp?NewsID=39034.
506
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 the distribution of power,
and the institutional legacy of
colonialism.
The ensuing conflict devastated a significant part
of Africa's largest country and deprived southern, western, and eastern Sudan of stability, growth, and development.
Consistent with the mandate of the CPA,
South Sudan effectively voted to secede from north Sudan.
new nation in the south was inaugurated on July 9, 2011.
signing of the Comprehensive Peace Agreement in 2005 was the beginning of a long march to peace. Since the referendum on self-determination is in the past, it is necessary to think about the project of nation-building that lies ahead. This essay is divided into three sections: Sudanese colonial state, political
11 United Nations Information and Communications Technology
Division/DFS, The background to Sudan's Comprehensive Peace
Agreement, UNMIS (2009),
http://unmis.unmissions.org/Default.aspx?tabid=515; F RANCIS M ADING
D ENG , S ELF -D ETERMINATION AND N ATIONAL U NITY : A C HALLENGE FOR A FRICA
(Africa World Press 2010).
12 M AHMOOD M AMDANI , S AVIORS AND S URVIVORS : D ARFUR , P OLITICS , AND
THE W AR ON T ERROR 75-108, 109-45 (2009); A MIR H.
I DRIS , C ONFLICT AND
P OLITICS OF I DENTITY IN S UDAN 23-41 (2005); Christopher Zambakari, South
Sudan in the Post-CPA Era: Prospects and Challenges, P AMBAZUKA N EWS ,
Jun. 28, 2011, http://www.pambazuka.org/en/category/features/75248
[hereinafter Zambakari, Post-CPA Era]; D OUGLAS H. J OHNSON , T HE R OOT
C AUSES OF S UDAN ' S C IVIL W ARS 9-19 (2003).
13 Alex Cobham, Causes of Conflict in Sudan: Testing The Black Book, 17
E UR .
J.
D EV .
R ES ., 464-65 (2005).
14 Part A, Section 1.3 reads: “That the people of South Sudan have the right to self-determination, inter alia, through a referendum to determine their future status.” Comprehensive Peace Agreement, supra note 3, at 2.
Part B, Section 2.5 states: “At the end of the six (6) year Interim Period there shall be an internationally monitored referendum, organized jointly by the
GOS and the SPLM/A, for the people of South Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the
Peace Agreement; or to vote for secession.” Comprehensive Peace
Agreement, supra note 3, at 4.
15 South Sudan Profile: Overview, BBC N EWS A FR ., http://www.bbc.co.uk/news/world-africa-14069082 (last updated Feb. 11,
2012).
16 Id.
507
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 violence, and political reform. In the first section, the paper focuses on the institutional legacy of “Indirect Rule” in South
Sudan. In the second section, attention turns to issues driving political violence and grievances of the marginalized areas.
These issues will be illustrated by looking at the surge in political violence in the disputed regions
as reflective of the dilemma that faces both north and South Sudan in a post referendum era. In the last section of the paper, I argue that the way out of the current predicament in the disputed regions — building a more inclusive political community in the north and south that respects unity in diversity — is contained in the conceptual framework known as the New Sudan, as articulated by the SPLM/A. I will further argue that a successful nationbuilding project will depend on how the Government of South
Sudan (“GOSS”) and the GOS manage to build a more inclusive state, which addresses the citizenship question.
17 The Conflict Areas mentioned in the Comprehensive Peace Agreement for special status include Abyei Area, Southern Kordofan, and Blue Nile
States. Comprehensive Peace Agreement, supra note 3, at xi. The
Government of the Sudan (“GOS”) and the SPLM/A signed a separate protocol in Naivasha, Kenya on May 26, 2004 that was integrated into the
CPA, called The Resolution of the Abyei Conflict. Comprehensive Peace
Agreement, supra note 3, at 63. This resolution dealt specifically with the conflict over Abyei. Id. It was determined that unlike the other two regions, which were part of the north, Abyei’s future was to be determined through a referendum similar to the one in the south. Section 5.1 of this Resolution stated that “[t]here shall be established by the Presidency, Abyei Boundaries
Commission (ABC) to define and demarcate the area of the nine Ngok Dinka
Chiefdoms transferred to Kordofan in 1905, referred to herein as Abyei
Area.” Id. at 68. The result of the ABC was rejected by the government in
Khartoum. See Fresh Fighting Breaks Out in Sudan North-South Border
Region, S UDAN T RIBUNE (Mar. 21, 2008), http://www.sudantribune.com/Fresh-fighting-breaks-out-in-Sudan,26451.
The local administration of Abyei has been dissolved. Sudan: Abyei Seizure
by North “Act of War,” Says South, BBC N EWS A FR ., http://www.bbc.co.uk/news/world-africa-13491445 (last updated May 22,
2011). The referendum has not taken place. See Sudan: Thousands
Displaced by Abyei Violence "At Risk,” IRIN (Mar. 8, 2011), http://www.irinnews.org/Report.aspx?ReportID=92129.
508
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
SUDAN: AN OVERVIEW
Sudan, known as Bilad al-Sudan, or “the land of the blacks,”
is the largest country on the African continent — 2.5
million sq km or about 1 million square miles, approximately one-third of the size of the United States of America — almost equal in size to the United States east of the Mississippi River.
According to some estimates, the country has 500 different ethnic groups speaking 130 languages.
Peter Bechtold,
Chairman Emeritus of the Near East and North Africa Studies,
Foreign Service Institute, U.S. Department of State, reports a higher number consisting of 600 ethnic groups speaking 400 languages and dialects.
Sudan has a rich cultural heritage as a cradle of African civilization.
Historians call it “The Corridor to Africa.”
It shares a border with nine states: Egypt to the
north, the Libyan Arab Jamahiriya to the north-west, Chad and the Central African Republic to the west, the Democratic
Republic of the Congo to the south-west, Uganda to the south,
Kenya to the south-east, and Eritrea and Ethiopia to the east.
The region which became Sudan in 1821, after an invasion by
18 S HORT CUT TO D ECAY : T HE C ASE OF THE S UDAN 26 (Sharif Harir & Terje
Tvedt eds., 1994); M AMDANI , S AVIORS AND S URVIVORS , supra note 12, at 75.
19 Peter K. Bechtold, Darfur, the ICC and American Politics, M IDDLE E.
P OL ’ Y C OUNCIL , http://www.mepc.org/journal/middle-east-policyarchives/darfur-icc-and-american-politics (last visited Feb. 11, 2012);
Background Note: Sudan, supra note 4.
20 Garang’s Speech at the Signing Ceremony of S. Sudan Peace Deal,
S UDAN T RIBUNE (Jan. 9, 2005), http://www.sudantribune.com/TEXT-
Garang-s-speech-at-the,7476.
21 Bechtold, supra note 19.
22 Charles Bonnet, Excavations at the Nubian Royal Town of Kerma:
1975-91, 66 A NTIQUITY 611, 611-25 (1992); S HORT CUT TO D ECAY , supra note
18, at 21-22.
23 W ILLIAM Y.
A DAMS , N UBIA : C ORRIDOR TO A FRICA (1984).
24 The World Fact Book: Sudan, supra note 5; M OHAMED H.
F ADLALLA ,
S HORT H ISTORY OF S UDAN 1 (2007).
509
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
Ottoman and British forces,
has a history that spans several
millennia.
The country was subdivided into kingdoms and sultanates that occasionally fought for supremacy at various periods.
After the British annexation of Egypt in 1882, the
British took over Sudan after three years of struggle between
1896 and 1899 and ruled it in conjunction with Egypt up until
1956.
Khartoum, the capital city of the Republic of Sudan,
located at the confluence of two rivers: the Blue Nile, carrying with it the residue and richness from Lake Tana as it passes through the highlands of Ethiopia, and the White Nile.
The
White Nile is a source of life for inhabitants along its path, flowing from Lake Victoria along the Kenya-Uganda and
Tanzania borders. Sudan is rich in mineral wealth with an abundance of crude oil and gold, and agricultural products such as cotton, livestock, gum Arabic, millet/sorghum, sesame, and wheat.
In addition, it also has large cattle ranches throughout
25 M AMDANI , S AVIORS AND S URVIVORS , supra note 12, at 76.
26 Id. at 77.
27 Julie Flint, Darfur, The Forgotten Sudanese War, W ORLD P RESS R EV .,
Mar. 2004, at 32, 32.
28 R. S. O'Fahey, Islam and Ethnicity in the Sudan, 26 J OURNAL OF
R ELIGION IN A FRICA 258, 260-62 (1996). This was the second conquest of the
Sudan in the nineteenth century. The first was the Turko-Egyptian conquest of 1821.
29 Sudan Profile: Facts, BBC N EWS A FR ., www.bbc.co.uk/news/worldafrica-14095114 (last updated Dec. 14, 2011). After July 9, 2011, Khartoum remains the capital city for Sudan while Juba is the capital city of the
Republic of South Sudan. South Sudan Profile: Facts, BBC N EWS A FR ., www.bbc.co.uk/news/world-africa-14069082 (last updated July 5, 2011).
There was an ongoing discussion about moving the capital city out of Juba, and on September 3, 2011, the Council of Ministers voted to move the capital of South Sudan to Ramciel. South Sudan Relocates its Capital from Juba to
Ramciel, S UDAN T RIBUNE (Sept. 3, 2011), www.sudantribune.com/South-
Sudan-relocates-its-capital,40027. As of the date of the writing of this paper,
Juba remains the physical capital in South Sudan.
30 The World Fact Book: Sudan, supra note 5.
31 United Nations Statistics Division, Sudan, UN DATA (2009), http://data.un.org/CountryProfile.aspx?crName=SUDAN; The World Fact
Book: Sudan, supra note 5.
510
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 the country and exports a surplus of cattle, sheep, and camels to the Arabian Gulf countries.
In 1956, Sudan became the first
country administered by Great Britain in Africa to become independent after World War Two.
also the first in postcolonial Africa, began with the Torit Mutiny, a few months before independence was attained on January 1,
1956.”
Since its independence, Sudan has been ruled by a
series of unstable parliamentary governments and military regimes.
Sudan came into existence in 1821, during the early part of the Condominium Rule, as a result of Turco-Egyptian occupation of the region south of Egypt.
the joint British and Egyptian government ruled Sudan from
1899 to 1955.
Capturing the transition in Sudan from one political rule to the next is quite fascinating, yet challenging.
Much has been written in the past about the cultures of various ethnic groups, land, and history of the country, so time will not be spent on those subjects.
On January 9, 2011, South Sudan
exercised its right to self-determination as enshrined in the
32 O MAR H ASSAN EL D IRANI , M OHAMMAD A J ABBAR , B ABIKER I DRIS
B ABIKER , C ONSTRAINTS IN THE M ARKET C HAINS FOR E XPORT OF S UDANESE
S HEEP AND S HEEP M EAT TO THE M IDDLE E AST 8, available at http://mahider.ilri.org/bitstream/handle/10568/7/ResearchReport_No16.p
df?sequence=1.
33 D OUGLAS H.
J OHNSON , T HE R OOT C AUSES OF S UDAN ' S C IVIL W ARS 9-19
(2003)
34 Id.
35 See The World Fact Book: Sudan, supra note 5.
36 M AMDANI , S AVIORS AND S URVIVORS , supra note 12, at 76.
37 Francis M. Deng, War of Visions: Conflict of Identities in the Sudan 11
(1995).
38 A DAMS , supra note 23; T HE B RITISH IN THE S UDAN , 1898-1956: T HE
S WEETNESS AND THE S ORROW (R OBERT O.
C OLLINS & F ANCIS M.
D ENG EDS .,
1984); E.E.
E VANS -P RITCHARD , T HE A ZANDE : H ISTORY AND P OLITICAL
I NSTITUTIONS (1971); F ADLALLA , supra note 24.
511
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 provisions of the CPA, and voted overwhelmingly for secession from north Sudan.
The challenges facing the new state in the south are enormous. Among the pending issues that have yet to be resolved are the fate of Abyei,
Nile.
Second, concern remains for many Sudanese living in the
Disputed Border Regions, as well as southerners in north Sudan and northerners based in South Sudan
.
the disputed border regions.
This urgency prompted UN experts to warn that if the problem in Abyei is not brought under control, it “could derail the implementation of the peace agreement that ended the country’s civil war . . . .”
Sudan's giant north-south border— 2,010 km (1,250 miles) long— remains un-demarcated, with progress slow on fixing the boundaries.
Fourth, debt and legal treaties have not been settled.
Sudan's crippling debt, estimated at
US$36.8 billion, of which US$30.8
39 U.N. Secretary-General, Report of the Secretary-General on the
Sudan, ¶ 2, U.N. Doc.
S/2011/239 (Apr.
12, 2011); SSRC Announces Final
Referendum Results, supra note 9.
40 Comprehensive Peace Agreement, supra note 3, at 63.
41 Comprehensive Peace Agreement, supra note 3, at 71.
42 Id.
43 U.N. Secretary-General, Report of the Secretary-General on the
Sudan, ¶¶ 1-7, U.N. Doc. S/2011/314 (May 17, 2011); U.N. Secretary-General,
Report of the Secretary-General on the Sudan, ¶¶ 14, 17, 19, 21, U.N. Doc.
S/2010/681 (Dec. 31, 2010); U.N. Secretary-General, Report of the
Secretary-General on the Sudan, ¶¶ 17, 25, U.N. Doc.
S/2010/388 (July 19,
2010).
44 See, e.g., Sudan: Abyei Seizure by North “Act of War,” Says South,
supra note 17.
45 Abyei Conflict Could Derail Sudan’s North-South Peace Process, UN
Warns, UN N EWS C TR .
(Mar. 14, 2011), http://www.un.org/apps/news/story.asp?NewsID=37754&Cr1#.
46 D OUGLAS H.
J OHNSON , W HEN B OUNDARIES B ECOME B ORDERS : T HE
I MPACT OF B OUNDARY -M AKING IN S OUTHERN S UDAN ' S F RONTIER Z ONES 9, 28
(2010), available at http://riftvalley.net/?view=publications.
512
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 billion was in arrears at the end of 2010,
in the north as well as in the south. The National Congress Party
(“NCP”) and the Sudan People’s Liberation Movement/Army
(“SPLM/A”) have not reach an agreement over Sudan’s staggering debt. The NCP want the debt to be divided between the two states.
Throughout the two decades of war, the NCP spent the money borrowed on military expenditure to wage a war with the South and neglected development in South Sudan.
South Sudan should not shoulder the liability of repayment because it never benefited from the loans
.
Fifth, building a southern identity is a work in progress. Without a common northern enemy, many fear political fractures within the south.
50 Sixth, there is a failure to
integrate militia after a process of demilitarization, disarmament, and reintegration of former combatants.
51 Leaders in the south must work
to bring together often-disparate groups, including opposition forces and those outside the mainstream SPLA movement to form a truly inclusive political community.
47 Sudan: Country Brief, Context, T HE W ORLD B ANK , http://web.worldbank.org/WBSITE/EXTERNAL/COUNTRIES/AFRICAEX
T/SUDANEXTN/0,,menuPK:375432~pagePK:141132~piPK:141107~theSiteP
K:375422,00.html (last updated Apr. 2011).
48 Sudan: Birth of a Nation, 52 A FRICA C ONFIDENTIAL , no. 2, Jan. 21,
2011, at 3; Sudan: Khartoum's Debt Threat, 52 A FRICA C ONFIDENTIAL , no. 12,
June 10, 2011.
49 U.S. Official Says Cancelling Sudan’s Debt a Lengthy Process, S UDAN
T RIBUNE , Jan. 13, 2011, http://www.sudantribune.com/U-S-official-sayscancelling-Sudan,37598.
50 Analysis: Key Challenges for Southern Sudan After Split, IRIN,
available at http://www.irinnews.org/PrintReport.aspx?ReportID=91863.
51 U.N. Secretary-General, Report of the Secretary-General on the
Sudan, ¶¶ 12-16, U.N. Doc. S/2010/314 (May 17, 2011); M AREIKE S CHOMERUS
& T IM A LLEN , S OUTHERN S UDAN AT O DDS W ITH I TSELF : D YNAMICS OF C ONFLICT
AND P REDICAMENTS OF P EACE 15, 62 (2010), available at http://www2.lse.ac.uk/businessAndConsultancy/LSEConsulting/recentRepo rts.aspx#Southern_Sudan.
52 S CHOMERUS & A LLEN , supra note 51, at 62.
513
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
CITIZENS WITHOUT A COUNTRY: THE PLIGHT OF
IDPS AND REFUGEES
The violence in Sudan has already cost the lives of millions, and there is no sign that the violence has ended. Instead, in the period shortly after the referendum, hundreds of people have been killed in clashes in the south and in the disputed regions.
Sudan Tribune, USA Today, and IRIN reported that in March
2011, more than 100 people were killed in two separate clashes involving the SPLA and “armed elements identified loyal to renegade groups operating in the two states of Greater Upper
Nile.”
The months of January and February were no less violent since the Geneva-based organization, Small Arms
Survey, reported that more than 200 people were killed when
Lt. Gen. George Athor, a dissident SPLA commander, took up arms after losing in the governorship election of Jonglei state.
The problem is exacerbated by two other matters, which complicate the situation in south Sudan further: Internally
Displaced Persons (“IDPs”) and refugees returning from neighboring countries or from outside of Africa altogether. A look at USAID statistics reveals the magnitude of the problem.
53 South Sudan Army Clashes With Rebel Group, Over 100 Dead, S UDAN
T RIBUNE (Mar. 8, 2011), http://www.sudantribune.com/South-Sudan-armyclashes-with,38227. See also More Than 100 Killed in Disputed Sudan
Region, USA T ODAY (Mar. 3, 2011), www.usatoday.com/news/world/2011-
03-03-Sudan_N.htm; Sudan: Thousands Displaced by Abyei Violence "At
Risk”, supra note 17.
54 George Athor’s Rebellion, Jonglei State, S MALL A RMS S URVEY , http://www.smallarmssurveysudan.org/pdfs/facts-figures/armedgroups/southern-sudan/emerging/HSBA-Armed-Groups-Athor.pdf updated Apr. 2011).
(last
514
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
Table I: Numbers of IDPs and Refugees in Sudan
Number at a Glance
IDPs in Sudan
Source
In Darfur: 1.9 million
In S. Sudan: 29,021
In N. Sudan: 1.7 million
In E. Sudan: 68,000
Total: 3.7 million
U.N.-November 2010
OCHA
UNHCR
-February 2011
-December
2009
OCHA-October 2010
Sudanese Refugees
North-South & Three
Areas Returns
October 30, 2010 to
February 8, 2011
From Darfur: 275,000
From S. Sudan:
138,270
Total: 413,270
UNHCR-January 2010
UNHCR-February 2009
IDPs: 2 million
Refugees: 330, 000
January 2005 to
November 2010
UNHCR-November
2010
OCHA/RCSO
February
8, 2010
55 This table of statistics is duplicated from a report issued by USAID.
See USAID, S UDAN – C OMPLEX E MERGENCY : F ACT S HEET #2, F ISCAL Y EAR (FY)
2011 1-2 (Feb. 18, 2011), available at http://www.usaid.gov/our_work/humanitarian_assistance/disaster_assista nce/countries/sudan/template/fs_sr/fy2011/sudan_ce_fs02_02-18-
2011.pdf.
56 Figure includes approximately 400,000 IDPs living in four sites recognized by Sudanese authorities. Most IDPs in northern Sudan live in informal settlements in and around Khartoum. Id.
Id.
57 U.N. Office for the Coordination of Humanitarian Affairs (“OCHA”).
58 Office of the U.N. High Commissioner for Refugees (“UNHCR”). Id.
59 According to UNHCR, as of February 13, 248 Sudanese refugees had returned to Southern Sudan since October 30, 2010. Id.
60 U.N. Resident Coordinator’s Support Office (RCSO). Id.
515
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
The
South Sudan Relief and Rehabilitation Commission
(“SSRRC”) reported that 21,000 people are stranded in deplorable living conditions in IDP camps around Khartoum.
property and businesses off when it was announced by the GOSS that they should return to the south. In the case of Abyei, the region that connects South Sudan to Sudan, violence has already cost hundreds of lives. The UN staffs in Abyei suggest that more than half the population has left town, with the number of displaced estimated to be around 100,000.
Lastly, the number of South Sudanese living in the north ranges from 1.5 million to 2 million, and a large number will not return to the south due to the difficult living conditions and current instability in the region.
These are the realities as they stand: proliferation of ethnic violence, a disputed border region pending consultation, millions of IDPs stranded throughout the country, and over half a million refugees yet to find a permanent home. In addition to the numerous challenges facing the south, the most pressing issue that it will have to resolve, should it decide to solve the issues fueling the ensuing violence, is the question of citizenship.
In order to
61 Sudan: Managing the Great Trek Southwards, IRIN, Mar. 10, 2011, http://www.irinnews.org/Report.aspx?Reportid=92150.
62 U.N.
O FFICE FOR THE C OORDINATION OF H UMANITARIAN A FFAIRS , S UDAN :
A BYEI C RISIS , S ITUATION R EPORT N O .
12 (Sept. 6, 2011), available at http://reliefweb.int/sites/reliefweb.int/files/resources/OCHA%20Situation
%20Report%20_12%20on%20Abyei%20Crisis%209%20June%202011.pdf.
See also USAID, supra note 55 (stating that there are 68,000 IDPs in Eastern
Sudan); Sudan: Managing the Great Trek Southwards, supra note 61;
Sudan: Thousands Displaced by Abyei Violence "At Risk”, supra note 17
(indicating that UN staff in Abyei suggest more than half the population has left town).
63 Marina Ottaway, Southern Sudanese Living in North Sudan, C
ARNEGIE
E NDOWMENT FOR I NT ’ L P EACE (Jan. 21, 2011), http://sudan.carnegieendowment.org/2011/01/21/southern-sudaneseliving-in-north-sudan; Briefing Paper on Southern Sudan: IDPs Return to
Face Slow Land Allocation, and No Shelter, Basic Services or Livelihoods,
I NTERNAL D ISPLACEMENT M ONITORING C TR .
(May 30, 2011), http://www.internal-displacement.org/briefing/south-sudan; Sudan:
Managing the Great Trek Southwards, supra note 61. See also Richard
Downie, Southern Sudan's Referendum, C TR .
FOR S TRATEGIC & I NT ’ L S TUDIES
(Jan. 5, 2011), http://csis.org/publication/southern-sudans-referendum.
64 A MIR H.
I DRIS , supra note 12, at 19-22; Ibrahim Abdullah, When Does an Indigene/Immigrant Become a Citizen? Reflections on the Nation-State in
Contemporary Africa, 7 A FR .
S OC .
R EV . 113, 113-17 (2003); Mahmood
516
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 conceptualize the violence occurring in Sudan, one must first and foremost understand the issues that led to the violence and continue to sustain the cycle of violence over time.
The main issues that link
Côte d’Ivoire, Nigeria, Liberia, Sierra Leone, Ethiopia, Somalia,
Burundi, Rwanda,
Democratic Republic of Congo,
Uganda,
Kenya, and South Africa, to the event that has led to the breakup of Africa’s biggest country, Sudan, are those of citizenship and nativity,
a question of who belongs and who does not belong.
Who is a native and indigenous to the homeland, and who is foreign, alien, or non-native in a tribal homeland? These questions center on the legitimacy to have a native authority to advocate for one’s right. They revolve around the issue of belonging, and the rights and entitlements that accompany civil citizenship. Most postcolonial African conflicts have revolved
Mamdani, Understanding the Crisis in Kivu: Report of the CODESRIA
Mission to the Democratic Republic of Congo September, 1997, C TR .
F OR
C IVIL S OC ’ Y (Nov. 20, 1998), http://ccs.ukzn.ac.za/files/mamdani.kivu.pdf
[hereinafter Mamdani, Understanding the Crisis in Kivu]; Zambakari, Post-
CPA Era, supra note 12.
65 For a good case study on Rwanda’s citizenship crisis, see M AHMOOD
M AMDANI , W HEN V ICTIMS B ECOME K ILLERS : C OLONIALISM , N ATIVISM , AND THE
G ENOCIDE IN R WANDA (2002).
66 For a good case study on the Democratic Republic of Congo (DRC)’s citizenship crisis, see Georges Nzongola-Ntalaja, Global Insights:
Citizenship, Political Violence, and Democratization in Africa, 10 G LOBAL
G OVERNANCE
403, 403-09 (2004); Mahmood Mamdani, The Invention of the
Indigène, L ONDON R EVIEW OF B OOKS (Jan. 20, 2011), http://www.lrb.co.uk/v33/n02/mahmood-mamdani/the-invention-of-theindigene [hereinafter Mamdani, The Invention of the Indigène]; Mamdani,
Understanding the Crisis in Kivu, supra note 64.
67 M OHAMED O MER B ESHIR , T HE S OUTHERN S UDAN : B ACKGROUND TO
C ONFLICT (1968); M OHAMED O MER B ESHIR , T HE S OUTHERN S UDAN : F ROM
C ONFLICT TO P EACE (1975); I DRIS , supra note 12, at 19-22; M AMDANI , S AVIORS
AND S URVIVORS , supra note 12; N EW S UDAN IN THE M AKING ?
E SSAYS ON A
N ATION IN P AINFUL S EARCH OF I TSELF (Francis M. Deng ed., 2010); S HORT CUT
TO D ECAY : T HE C ASE OF THE S UDAN , supra note 18; Francis M. Deng,
Ethnicity: An African Predicament, 15 Brookings Rev. 28, 28-31 (1997).
68 Identity, Security and the Renegotiation of National Belonging in
West Africa: Reflections on the Cote d’Ivoire Crises and its Repercussions on
the West Africa Region, CODESRIA (May 15-16, 2003), available at http://www.codesria.org/spip.php?article582&lang=fr.
517
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 around the question of citizenship.
defining example of the failure to reform the colonial system and build an inclusive polity.
To illustrate the point and the difficulty in building a more equitable society that engages in a peaceful nation-building that is democratic, transparent, and inclusive of the diversity within the country, I will present the case of an Ethnic Administrative Division in South Sudan: the
One County-One Tribe Policy. In doing so, I hope to bring the study of South Sudan into the mainstream study of postcolonial
Africa, along with the challenges that most African countries face and the dilemma of unity in diversity.
PROBLEMS OF THE SUDAN: NORTH AND SOUTH
The 20th century was a period in human history replete with never-before-seen violence. One cannot help but ask: what is the reason behind the proliferation of violence in the postcolonial Sudan? Is it that violence is embedded in Sudanese cultures? If the kind of violence taking place after independence from the late 1950s is not revolutionary, counter-revolutionary, or even anti-colonial, how does one make sense of this new kind of violence?
Let us first explore the grievances that led to the signing of the CPA to frame the larger problem, and then turn to the specifics by looking at the politics of county creation in
South Sudan and how that is laying the groundwork for future conflicts.
On January 9, 2005, the SPLM/A and the GOS signed a peace agreement called the CPA, which ended the conflict in
South Sudan that had been going on since 1983. Between the
69 Zambakari, Post-CPA Era, supra note 12.
70 Id.
71 Francis M. Deng, Sudan: A Nation in Turbulent Search of Itself, 603
A NNALS A M .
A CAD .
P OL .
& S OC .
S CI .
155, 160 (2006).
72 Mahmood Mamdani, Columbia Univ., Making Sense of Non-
Revolutionary Violence: Some Lessons from the Rwandan Genocide, Text of the Franz Fanon Lecture 1 (Aug. 8, 2001), available at http://ccs.ukzn.ac.za/files/Mahmood%20Mamdani's%20Frantz%20Fanon%
20lecture.pdf [hereinafter Mamdani, Making Sense of Non-Revolutionary
Violence].
518
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
First Civil War and the SPLA/M uprising in 1983, there was another group, which referred to itself as Anyanya II.
The movement started shortly after the Addis Ababa Agreement and initiated military operations starting in 1978 in Eastern Upper
Nile on the Ethiopian border.
The CPA was the outcome of the so-called Machakos peace process, which began in July 2002. It was composed of six partial agreements that have been signed by the two parties
(NCP and SPLM/A).
The Agreement included important
stipulations for South Sudan to achieve the goal of selfdetermination for the people through a referendum organized in
2011.
The signatories to the CPA came to the realization that
South Sudan had been continuously dominated by North
Sudan.
Resources were not allocated equally between the
regions.
Power was highly centralized in the hands of a few in
Khartoum.
To cite one case, the process of Sudanization of the civil service, which took place shortly after the Juba Conference of 1947, resulted in only six out of 800 posts going to
73 John Young, John Garang's Legacy to the Peace Process, the SPLM/A
& the South, 32 R
EV .
A FR .
P OL .
E CON . 535, 538 (2005).
74 Id.
75 J OHAN B ROSCHÉ , S HARING P OWER –E NABLING P EACE ?
E VALUATING
S UDAN ’ S C OMPREHENSIVE P EACE A GREEMENT 2005 17-18 (2009), available at http://www.ucdp.uu.se/gpdatabase/info/Sud%203.pdf.
76 Comprehensive Peace Agreement, supra note 3, at 1. Part A, Section
1.3 reads: “That the people of South Sudan have the right to selfdetermination, inter alia, through a referendum to determine their future status.” Id. at 2. Part B, Section 2.5 states that “At the end of the six (6) year
Interim Period there shall be an internationally monitored referendum, organized jointly by the GOS and the SPLM/A, for the people of South Sudan to: confirm the unity of the Sudan by voting to adopt the system of government established under the Peace Agreement; or to vote for secession.” Id. at 4.
77 B ROSCHÉ , supra note 75, at 17-18.
78 Cobham, supra note 13, at 463.
79 S CHOMERUS & A LLEN , supra note 51, at 14.
519
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 southerners.
The history of South Sudan, along with other marginalized areas, is one of deliberate policies by each postcolonial government to marginalize socially, politically and economically peripheral regions in Sudan.
Thus, the CPA set out to correct the imbalances through power-sharing,
decentralization of authority, and equal allocation of revenue from oil between the north and the south.
More importantly, the CPA included the provision for a referendum on the selfdetermination of the south to be held at the end of the interim period.
The interim period has seen development in South
Sudan as a result of the wealth-sharing provision, which allocated 50 percent of the revenue from oil to the GOSS. In the area of reform of national and local institutions of governance, however, reform has been contradictory, as the London School of Economics’ report showed.
According to the CPA, too much centralization of power in Khartoum was part of the problem in
Sudan, so decentralization became a de facto solution.
southern Sudan the government experimented with decentralization only to return to a highly centralized system.
At the local level, the government policy was to enact legislation called the Local Government Act in 2009,
which was seen as a way to delegate power to the local institutions.
80 David S. Bassiouni, Keynote Address by Dr. David S. Bassiouni to
ESCA-USA 10th Annual Conference 4 (Sept. 4-5, 2010).
81 Christopher Zambakari, Old Sudan and New Sudan: Political Crisis
and the Search for Comprehensive Peace, P AMBAZUKA N EWS (Jan. 26, 2012), http://www.pambazuka.org/en/category/features/79401/print.
82 Comprehensive Peace Agreement, supra note 3, at 9. This agreement is known as the Protocol on Power Sharing.
83 Comprehensive Peace Agreement, supra note 3, at 45. This agreement is known as the Protocol on Wealth Sharing.
84 Comprehensive Peace Agreement, supra note 3, at 1.
85 S CHOMERUS & A LLEN , supra note 51, at 9, 15.
86 Id. at 38-39.
87 The Local Government Act, 2009 (2009) (S. Sudan), available at http://www.ldphs.org.za/resources/local-government-database/bycountry/sudan/sub-national-
520
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
However, this policy too is tainted by something familiar in
Sudanese history: the mode of rule adopted by British strategists to govern Sudan.
This was an administrative mechanism characterized by a duality in law, which translated into parallel structures, one governing those in the urban areas, and another system governing the peasants in rural areas.
that enabled British colonial administrators to divide up the majority of peasants into hundreds of smaller minorities and effectively deny them the political rights to mobilize or act as a majority.
The next section looks at the consequences of this
way of organizing the mass in the countryside.
ETHNIC ADMINISTRATIVE DIVISION-ONE
COUNTY-ONE TRIBE
Historically, south Sudan was composed of three provinces:
Bhar el Ghazal Region, Upper Nile, and Equatoria.
Today the south consists of ten states: Central Equatoria, Eastern
Equatoria, Jonglei, Lakes, Northern Bahr El Ghazal, Unity,
Upper Nile, Warrap, Western Bahr El Ghazal, and Western legislation/The%20Local%20Government%20Act%202009.pdf. This Act was made “[i]n accordance with the provisions of Article 59(2)(b) read together with Article 85(1) of the Interim Constitution of Southern Sudan,” which was enacted in 2005. Id. See also I NTERIM C ONST .
OF S.
S UDAN (2005), available at http://www.chr.up.ac.za/undp/domestic/docs/c_SouthernSudan.pdf.
88 The Local Government Act, 2009, supra note 87.
89 Zambakari, Post-CPA Era, supra note 12.
90 See generally, M AHMOOD M AMDANI , C ITIZEN AND S UBJECT :
C ONTEMPORARY A FRICA AND THE L EGACY OF L ATE C OLONIALISM , ch. 4 (1996)
[hereinafter M AMDANI , C ITIZEN AND S UBJECT ].
91 Christopher Zambakari, South Sudan and the Nation-Building Project:
Lessons and Challenges, 6 I NT ’ L J.
A FR .
R ENAISSANCE S TUD . 32, 39 (2011)
[hereinafter Zambakari, Nation-Building].
108.
92 See S HORT CUT TO D ECAY : T HE C ASE OF THE S UDAN , supra note 18, at
521
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
Equatoria.
According to a report by the London School of
Economics on the dynamics of conflict in Sudan,
study that illustrates the tendency for a proliferation of states, counties, and homelands is seen with the Eastern Equatoria
State (“EES”), which until recently had two main districts: Torit and Kapoeta. Kapoeta was the first to then subdivide into three counties: north (Didinga), south (Buya), and eastern (Toposa and Nyangatom). Torit subdivided into three more counties:
Magwi (Acholi and Madi), Ikotos (Dongotona and Lago), and
Lafon/Lopa (Lopi and Pari).
eight counties, and this number is increasing.
The division is not arbitrary or accidental but reflects the reality on the ground, local and national politics above, and real grievances at the local level.
The capital of a county is located in the dominant tribe’s
homeland, which gives the tribe both political representation and access to resources.
The most important resource is land.
Government representatives are recruited from home
areas.
This method of ruling and organizing the mass of
peasantry is not unique to Sudan.
It is, in fact, one that is fairly common in Africa.
The creation of Ethnic Federalism, a constellation of tribes with corresponding local governments,
93 About South Sudan, Government, State Governments, E MBASSY OF THE
R EPUBLIC OF S.
S UDAN IN W ASH .
D.C., http://www.gossmission.org/goss/index.php?option=com_content&task=vi ew&id=351&Itemid=176.
94 S CHOMERUS & A LLEN , supra note 51, at 42.
95 Id.
96 Zambakari, Nation-Building, supra note 91, at 43.
97 Id.
98 Id.
99 Id.
100 Id. at 42.
101 Id.
102 Zambakari, Nation-Building, supra note 91, at 42.
522
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 can be seen in the case of Nigeria, which has a provision in its constitution called the Federal Character Commission,
the Ethiopian constitution,
which mandates that each tribe
has a homeland or ‘One County-One Tribe Rule.’
an institution devoted to the management of the mass of peasantry in the rural areas called the Ministry of Local
Government.
Sudan has copied this mode of governance, and through the Local Government Act of 2009, created a hybrid system incorporating a Customary Law and Council into Local
Governance. This is an institutional legacy from the British mode of rule in Africa, indirect rule, which functioned on a dual system: one governing over the urban city dwellers and another over the peasants in the countryside.
103 C ONSTITUTION OF N IGERIA (1999), § 14(3).
“The composition of the
Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty, thereby ensuring that there shall be no predominance of persons from a few State or from a few ethnic or other sectional groups in that Government or in any of its agencies.” Id. §153(1)(c) establishes the
Federal Character Commission. The Third Schedule, Part 1, §7 states: “The
Federal Character Commission shall comprise the following members: (a) a
Chairman; and (b) one person to represent each of the states of the
Federation and the Federal Capital Territory, Abuja.” Id. The Third
Schedule, Part I, §8(1) empowers the Commission and states: “In giving effect to the provisions of section 14(3) and (4) of this Constitution, the
Commission shall have the power to: (a) work out an equitable formula subject to the approval of the National Assembly for the distribution of all cadres of posts in the public service of the Federation and of the States, the armed forces of the Federation, the Nigeria Police Force and other government security agencies, government owned companies and parastatals of the states.” Id.
104 Minasse Haile, The New Ethiopian Constitution: Its Impact Upon
Unity, Human Rights and Development, 20 S UFFOLK T RANSNAT ’ L L. R EV . 1,
19-20 (1996); Mahmood Mamdani, Columbia Univ., Political Identity,
Citizenship and Ethnicity in Post-Colonial Africa, Keynote Address at the
Arusha Conference: “New Frontiers of Social Policy” 16 (Dec. 12-15, 2005)
[hereinafter Mamdani, Keynote Address at the Arusha Conference].
105 Zambakari, Nation-Building, supra note 91, at 42-43.
106 M AMDANI , C ITIZEN AND S UBJECT , supra note 90, at 60-61 (1996).
107 Id. at 16-22.
523
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 the intent of satisfying certain disenfranchised groups, this policy produces enormous violence and instability within a country. It preempts the creation of a truly inclusive state and focuses on a mode of governance, which produces many smaller
‘nation-states’ within the larger state.
The division is built on certain assumptions. It is argued by proponents of this continuous subdivision that the political map must follow the cultural map of a region at both the national level and the county level.
African countries that adhere to
this policy also rely on ethnic quotas to fill positions in government, federal institutions, universities, and the armed forces.
This raises a series of questions about qualification for
those positions and the unintended consequences of the policy itself. How does the state identify who can and cannot apply for jobs in state institutions? What are the criteria used in recruiting for these positions and how does the state achieve its objectives without turning citizenship into an ethnically-defined membership in a native homeland?
The real problem is that cultural and political boundaries should coincide and that the state should be a nation-state — such that the natural boundaries of a state are those of a common cultural community.
observation in a number of places in regards to other African countries,
and the crisis that ensues as various groups seek to have representation by having a tribal homeland. Mamdani writes, “For no matter how much we redraw boundaries, the political crisis will remain incomprehensible until we address
108 Mamdani, Keynote Address at the Arusha Conference, supra note 104, at 4.
109 The case of Nigeria is illustrative of these tendencies. See
C ONSTITUTION OF N IGERIA , supra note 103, Third Schedule, Part 1, §8.
110 Mamdani, Keynote Address at the Arusha Conference, supra note 104, at 4.
111 Mahmood Mamdani, When Does a Settler Become a Native?
Reflections on the Colonial Roots of Citizenship in Equatorial and South
Africa, Inaugural Lecture (May 13, 1998); Mahmood Mamdani,
Understanding the Crisis in Kivu, supra note 64; Mamdani, Keynote
Address at the Arusha Conference, supra note 104; Mahmood Mamdani, The
Invention of the Indigène, supra note 66.
524
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 the institutional – political – legacy of colonial rule.”
As this paper is being written, the Lopit and the Pari have filed for new counties, claiming that they can no longer coexist with each other.
Today, there are demands in South Sudan to create counties based on ethnicities, and each ethnicity should be entitled to its
With a country as diverse as Sudan, one must ask: homeland.
where does this process of continuous political fragmentation end? There is one problem that is a direct outcome of this particular mode of organizing a population: political violence.
What happens when IDPs and refugees return to South Sudan?
Where will they live? Should they be confined to already demarcated states with respective counties, or should they also fight to have their own counties? How about immigrants? What happens to immigrants who do not have a county? If right to land and political representation follows an ethnic system whereby everyone has a homeland, what happens to immigrants who have neither a homeland in Sudan, nor a representation in the form of a native authority? The answer lies in a particular form of the state that has emerged in Africa after independence.
The reality of the postcolonial state in Africa can be summarized as follows: in an increasingly integrated global economy, people move to wherever they have the chance for a better life. A dynamic economy moves people, mostly labor migrants, outside their ‘tribally defined homeland’ and forces them to cross over different boundaries. However, the colonial state especially penalizes those that are most dynamic, those who respond to favorable economic conditions across political
112 Mamdani, Keynote Address at the Arusha Conference, supra note 104, at 4-5.
113 S CHOMERUS & A LLEN , supra note 51, at 43.
114 See M AREIKE S CHOMERUS AND T IM A LLEN , S OUTHERN S UDAN AT O DDS
W ITH I TSELF : D YNAMICS OF C ONFLICT AND P REDICAMENTS OF P EACE 40-42
(2010), http://www2.lse.ac.uk/businessAndConsultancy/LSEConsulting/pdf/southe rnSudan.pdf.
115 Abdullah, supra note 64, at 113; M AMDANI , C ITIZEN AND SUBJECT , supra note 90, at 52-90.
525
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 boundaries, those who go in search of employment and better living conditions outside of their countries. It brands them as aliens, non-indigenous, or foreigners.
Banyarwanda in Uganda and in Eastern Congo, the Ghanaians in Nigeria, and the Burkinabe in Ivory Coast, are illustrative of these tendencies in the postcolonial period.
mentioned cases, violence has been the outcome as those defined as natives and indigenous confront those branded as non-natives and non-indigenous.
In the next section, I will discuss the colonial state in Africa and the relevance of its study as it applies to South Sudan. In doing so, I hope to show that the development in Sudan is not unique to Sudan, but is a problem that affects all African countries. Last, I will look at the reform of that state and draw relevant lessons from a country where a successful reform has been undertaken, war brought to an end, and the example that inspired the signing of the CPA. The same lesson has applied where mass violence has been stopped, such as in Mozambique.
The Mozambican National Resistance (“RENAMO”) was involved in some of the most heinous crimes in Mozambique: cutting off hands, maiming, burning villages, deliberately targeting civilians, and kidnapping children and forcing them into carrying out brutalities against their own parents and friends.
The U.S. State Department estimates that one million
Mozambicans perished during the civil war.
In Mozambique,
116 Mahmood Mamdani, Social Movements and Constitutionalism in the
African Context (Ctr. for Basic Research, Working Paper No. 2, 1989);
Mamdani, Understanding the Crisis in Kivu, supra note 64; Mamdani,
Keynote Address at the Arusha Conference, supra note 104, at 4; Nzongola-
Ntalaja, Global Insights, supra note 66.
117 Abdullah, supra note 64; Mahmood Mamdani, The Social Basis of
Constitutionalism in Africa, 28 J. M OD . A FR . S TUD . 359, 367 (1990).
118 Glenda Morgan, Violence in Mozambique: Towards an Understanding of Renamo, 28 J. M OD . A FR . S TUD . 603, 607-09 (1990); Mahmood Mamdani,
Good Muslim, Bad Muslim: A Political Perspective on Culture and Terrorism,
104 A M .
A NTHROPOLOGIST 766, 769 (2002); Thandika Mkandawire, The
Terrible Toll of Post-Colonial ‘Rebel Movements’ in Africa: Towards an
Explanation of the Violence Against the Peasantry, 40 J.
M OD .
A FR .
S TUD . 181,
206-7 (2002).
119 Background Note: Mozambique, U.S.
D EPT .
OF S TATE (Nov. 4, 2011), http://www.state.gov/r/pa/ei/bgn/7035.htm.
526
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 like in South Africa, violence was brought to an end through political reform. Today, RENAMO sits in Parliament and not in prison.
The peace agreement signed in 2005 between the
SPLA/M and the GOS was also modeled on a similar understanding, whereby there was no military victory but a stalemate between the adversaries.
Both parties agreed with the signing of the CPA that no one was to be held accountable for the atrocities committed in Sudan during the civil war.
The key in every case has been political reform of the state, and prioritizing political reform over criminalizing opponents. At the core of the political reform is the recognition that we must not see all public violence as criminal. It was only when the
South Africans decriminalized political adversaries, expanding the realm of political membership, that there was an opening for dialogue that resulted in the transformation ushered in during a post-apartheid South Africa. That same political imagination was at work in the dialogue that delivered the CPA in Sudan, and the violence came to an end. The African example of how to resolve the citizenship question, manage diversity within unity, and reform the colonial state can be seen within South Africa’s transition from apartheid to a democratic system. This, more than the lessons of the European nation-state, is relevant for containing non-revolutionary violence based on political exclusion in South Sudan.
MAKING SENSE OF NON-REVOLUTIONARY
VIOLENCE IN AFRICA
In light of the recent developments around Africa, Bret
Stephens, a Deputy Editor for the Wall Street Journal, called for a new kind of colonialism in Africa to help solve Africa’s problems. He wrote recently in his column:
120 M AMDANI , S AVIORS AND S URVIVORS , supra note 12, at 285-86.
121 Comprehensive Peace Agreement, supra note 3.
122 Mahmood Mamdani, The New Humanitarian Order, 287 T HE N ATION
17, 22 (Sept. 29, 2008).
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
It means that colonialism, for which the West has spent the past five decades in nonstop atonement, was far from the worst thing to befall much of the colonized world. It means, also, that some new version of colonialism may be the best thing that could happen to at least some countries in the postcolonial world.
What Stephens failed to come to terms with was the devastating legacy of colonialism in Africa, from which Africa has yet to fully recover five decades later. Instead of contextualizing the violence and its corresponding twin on the continent, underdevelopment, Stephens saw the problem as internal and prescribed the solution to be a ‘new version of colonialism’ to be externally imposed. Implicit in his analysis is that colonial power brought law and order to the colonies. The departure of colonial powers led to chaos and lack of development. This also shows the failure to understand the nature of postcolonial violence in Africa. Stephens is not saying anything new that has not been said before. His western-centric view, which denies that African agencies are capable of producing progressive movements and leading social transformation, has its roots in European racist scholarship.
It is neither original, nor supported by historical fact. Rather, it is a viewpoint created politically. Any policy designed to bring lasting peace in former colonies must begin with the question of citizenship, which is what most of the violence revolves around.
At the heart of the colonial system of governance was
dualities in how the colonized were organized, and how those deemed civilized were governed.
law, whereas the urban civilized were governed under common
123 Bret Stephens, Haiti, Sudan, Cote d’Ivoire: Who Cares?, Wall St. J.,
Jan. 11, 2011, at A15.
124 G EORG W ILHELM F RIEDRICH H EGEL , T HE P HI l OSOPHY OF H ISTORY 91-92
(J. Sibree trans. 1956).
125 Zambakari, Post-CPA Era, supra note 12.
126 Id.
528
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 law, natives were governed under customary law.
Customary law, in turn, discriminated based on membership in an ethnic homeland.
It was a system that privileged those considered
natives and discriminated against those considered aliens, foreigners, and non-natives.
we rethink the institutional legacy of colonialism and the legacy of the postcolonial state in Africa. It demands political imagination in thinking of a different future, one based on moving forward, and not one based on the wrongs of the past.
Those who study violence distinguish between two dominant forms: violence that makes sense, and violence that does not make sense. In an attempt to come to terms with the consequences of a bloody and violent century,
which still continues into the 21 st century, scholars group revolutionary violence, anti-colonial struggles during the decolonization phase, and counter-revolutionary violence, as meaningful and humane. This kind of violence is said to be progressive.
second kind of violence is said to be reactionary and regressive; thus, it is counter-productive. This latter kind is meaningless violence that seems to defy reason, and therefore lies outside the scope of understanding. It is devoid of meaning.
The former is a legacy from the European Enlightenment, which viewed politically organized violence as a necessary component of progress. The latter is linked to the process of state formation in
Africa.
It is an outcome of the mode of rule used to colonize
Africa in the 19 th century.
127 Id.
128 Id.
129 M AMDANI , C ITIZEN AND S UBJECT , supra note 90.
130 Peter Wallensteen, War and Peace: Lessons from the 20th Century:
The Hoirup Inaugural Lecture, 89 S CANDINAVIAN R EV . 5, 6 (2001).
131 Mamdani, Making Sense of Non-Revolutionary Violence, supra note
72, at 8.
132 Id.
133 I DRIS , supra note 12, at 2-3.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
Columbia University’s leading scholar on African Politics,
Mahmood Mamdani, has called the latter type of violence that is devoid of meaning, “non-revolutionary violence.”
Progressive violence or ‘good violence’ is also associated with the legacy of
Karl Marx, who famously professed “revolution is the midwife of history.”
This tradition finds its genesis in the French
Revolution.
Since the French Revolution, violence has been
understood as essential to progress.
On the other hand,
Marxist paradigm failed to account for non-revolutionary violence – violence that does not remain class specific, but transcends both class and ethnicity.
“Its failure was in its inability to understand the kind of violence that pits the impoverished and disempowered against each other.”
non-revolutionary violence, the lines of battle are not drawn by wealth and poverty, but by differences not economic in nature.
In Africa, we see a significant reduction in interstate conflict,
but a proliferation of ethnic conflicts within states with an increasing death toll for civilian population, including both direct and indirect conflict deaths.
This development can be
134 Mamdani, Making Sense of Non-Revolutionary Violence, supra note
72, at 1.
135 Mahmood Mamdani, Culture Talk: Six Debates That Shape Discourse
on "Good" Muslims, 22 A
M .
J.
I SLAMIC S OC .
S CI . 95, 101 (2005).
136 Id.
137 Id.
138 Zambakari, Nation-Building, supra note 91, at 37.
139 Id. at 37-38.
140 Mamdani, Making Sense of Non-Revolutionary Violence, supra note
72, at 1.
141 Lotta Themnér & Peter Wallensteen, Armed Conflict, 1946-2010 ,
J.
P EACE R ES . 525, 525-26 (2011), available at http://jpr.sagepub.com/content/48/4/525.
142 G ENEVA D ECLARATION S ECRETARIAT , G LOBAL B URDEN OF A RMED
V IOLENCE 2-3 (2008), available at http://www.genevadeclaration.org/fileadmin/docs/Global-Burden-of-
Armed-Violence-full-report.pdf; Thandika Mkandawire, The Terrible Toll of
530
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 seen in Sudan. Whereas the CPA brought the war between the north and south to an end, the south has been plagued by mass interethnic violence. The Border States,
eastern and western regions, Abyei, and Southern Kordofan, all have been engulfed in a series of violence.
This kind of violence is nonrevolutionary. The outcome of non-revolutionary violence easily leads to ethnic and racial cleansing.
POLITICAL VIOLENCE AND ETHNIC CLEANSING
Most violence in Africa is related to access to resources and participation in the political process. The most important of resources is access to land. A good place to start is to study how land was treated under colonial rule. For the British, the lessons learned in India led to the removal of land from the market and handed over to the native authority,
its allocation to those designated as natives, and deprived those considered non-natives. According to leading British colonial administrator, Lord Lugard: “the native authority is thus de
facto and de jure ruler over his own people . . . . He exercises the power of allocation of lands, and with the aid of the native courts, of adjudication in land disputes and expropriation for offences against the community.”
In this sense, a non-native could rent but not own land. Land belonged to the collective membership and was accessed as a customary right. Given that the rich, whether native or non-native could purchase land
Post-Colonial ‘Rebel Movements’ in Africa: Towards an Explanation of the
Violence Against the Peasantry, J.
M OD .
A FR .
S TUD . 181, 181-83 (2002).
143 The Border States mentioned in the Comprehensive Peace Agreement for special status include Abyei, Southern Kordofan, and Blue Nile. See
Comprehensive Peace Agreement, supra note 3, at 65, 73.
144 Christopher Zambakari, In Search for Durable Peace: The
Comprehensive Peace Agreement and Power Sharing in Sudan, I NT ’ L J.
H UM .
R TS .
*14 (forthcoming Fall 2012).
145 S IR H ENRY S UMNER M AINE , L ECTURES ON THE E ARLY H ISTORY OF
I NSTITUTIONS 81-82 (7 TH ED .
1914); H ON .
S IR F.
D.
L UGARD , T HE D UAL
M ANDATE IN B RITISH T ROPICAL A FRICA 286 (4th ed. 1929).
146 L UGARD , supra note 145, at 203.
531
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 anywhere, what then was the reality of the poor peasant? If “you could not afford to buy land in the first place, you could still claim land ‘customarily’, in your ‘home’ area, from your
‘customary’ chief, as a ‘customary’ right, under ‘customary’ law.”
The outcome was a strong sense of ethnic belonging. All
this led to a heightened sense and drive to belong to a tribe, whose land will be accessed exclusively as a customary right from the native authority by those considered natives of the land.
From the 1930’s through the 1940’s, the British colonial policy in the south gained momentum. Besides the conscious effort to shape the identity of the subjects in both the north and south, a far more brutal outcome of the British Southern Policy was reflected in the forceful displacement of people from one region, where they were considered non-indigenous, to another, where they were considered indigenous. It involved the purification of all the ethnic groups considered foreign to the region.
Contacts between the two regions were restricted.
Historically, Sudan was also home to immigrants from East and
West Africa, who moved to wherever the living conditions were suitable for settling, and to those making their way to the Mecca.
Tribes such as Banda, Dongo, Kreish, Feruge, Nyangulgule, and
Togoyo, who adopted Islamic and Arabic cultures and maintained constant contacts with Arab tribes in Central and
Western Sudan (Darfur and Khordofan), were forcefully removed from their regions and resettled in other areas away from the influence of their northern Arab neighbors.
The policy adopted and implemented throughout southern Sudan resembled a similar project in apartheid South Africa with the administration of a Pass System.
Characteristic of this project
was the re-tribalization of the population, where the ethnic
147 Mahmood Mamdani, Columbia Univ., When Does a Settler Become a
Native? : Reflections of the Colonial Roots of Citizenship in Equatorial and
South Africa 2 (May 13, 1998).
148 B ESHIR , T HE S OUTHERN S UDAN : B ACKGROUND TO C ONFLICT , supra note
67, at 51.
149 Id.
150 G ENERAL J.C.
S MUTS , A FRICA AND S OME W ORLD P ROBLEMS 73-103
(1930).
532
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 groups were fragmented and restricted from moving outside the tribal homeland. This was a political project focused on ethnic cleansing and racial purification so as to create a homogenous group throughout Sudan. Mohamed Beshir captured the outcome of the Southern Policy as it was being implemented throughout South Sudan:
In pursuance of this policy, all natives of Darfur and Khordofan were prevented from entering Bahr al Ghazal. No natives of the latter were allowed to go to Khordofan or Darfur. The traditional contact between the Dinka and Arabs which took place annually at the common grazing grounds of Bahr al Arab was reduced to the minimum. The Dinka settled in the north were asked to return so that “a more complete separation could be enforced.” A
Pass System, similar to that applied in South
Africa, was applied, in order to control the contact between north and south. In a meeting held at
Kafia Kingi on 14 February, 1940, between District
Commissioner, Western District, Bahr al Ghazal, and his counterpart in Darfur, it was agreed that only those Northerners who had passes signed by the District Commissioner would be allowed to enter Raga District.
The British colonial project shaped and changed the very nature of the organization of resistance through the mechanism of law. This included the Closed District Ordinances, an administrative division of Darfur into tribal homelands, and the imposition of a dual system of governance, one in the north and a different one in the south.
This project defined individuals
and grouped them into categories and enforced the distinction in law.
The policy laid by the British in the early 20th century
in Sudan also explains the cycle of violence in Darfur in the west
151 B ESHIR , T HE S OUTHERN S UDAN : B ACKGROUND TO C ONFLICT , supra note
67, at 51.
152 Zambakari, Nation-Building, supra note 91, at 40
153 M AMDANI , S AVIORS AND S URVIVORS , supra note 12, at 152-63.
533
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 of the country and the deadlock over the disputed regions, with
Abyei being the most contested area.
dispute over Abyei that it is instructive to compare it to yet another explosive and unresolved dispute between India and
Pakistan over Kashmir.
Abyei has already proved to be a
destabilizing force for North and South Sudan. Without reaching a region-wide consensus, which will settle the underlying issues over political participation and access to pasture and land, Abyei may end up turning into Sudan’s
‘Kashmir’.
The problem in Abyei between the Ngok, Dinka
and the Misseriya, and the conflict between the Camel Nomads of the north in Darfur and the agriculturalists in Southern
Darfur, is that the demand for tribal homeland in South Sudan revolves around the same issues: political representation, access to pasture for cattle, and claims to a tribal homeland being advocated for on behalf of the tribe.
underlying issues, the violence will not subside. Instead, the frequency and intensity of the new waves of violence will be far more deadly, given that the region is heavily armed, and because the central governments in North and South Sudan do not have a monopoly over arms as demonstrated by the outstanding rebellions currently underway in western Sudan (Justice and
Equality Movement, or “JEM”, SLM/A, and the several armed militias in the Republic of South Sudan).
The regions have not been thoroughly demilitarized. Militias have not been completely disarmed and reintegrated into the armed forces or society.
The central governments in Khartoum and Juba have
154 Id.
155 Zambakari, Nation-Building, supra note 91, at 46.
156 Id.
157 Flint, supra note 27, at 32.
158 Southern Dissident Militias, S MALL A RMS S URVEY S UDAN .
ORG , http://www.smallarmssurveysudan.org/facts-figures-armed-groupssouthern-sudan-emerging.php (last updated July 2011); Southern Dissident
Militias, T HE S UDAN H UMAN S ECURITY B ASELINE A SSESSMENT P ROJECT , http://www.smallarmssurveysudan.org/facts-figures-armed-groupssouthern-sudan-emerging.php (last updated July 2011).
534
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 not acquired total monopoly or control over arms and traffic of weapons into the region.
Land has always been an asset in Africa. It is the source for livelihood for the mass of the peasantry. With British indirect rule, access to land, and participation and representation in local governance, was assigned to native authorities who administered land and settled local disputes.
Violence in the postcolonial period cannot be understood as revolutionary or counter-revolutionary.
This violence does not fit into existing
paradigms because it is not based on non-market distinctions.
It is not animated by class distinction.
It is rather the outcome of a distinction made by the state and inscribed in law.
must be understood as a result of a particular mode of organizing the colonized. It is the outcome of the process of state formation.
Furthermore, the kind of violence that is
ethnic in character, whereby the battle lines are not drawn by wealth or poverty,
cannot be solved by a top-down approach,
foreign aid, development assistance, or military intervention.
This is because, to use the words of Frantz Fanon, postcolonial violence pits the “Wretched of the Earth” against each other, the
159 L YDIA S TONE , F AILURES AND O PPORTUNITIES : R ETHINKING DDR IN
S OUTH S UDAN 1-3 (May 2011), available at http://www.smallarmssurveysudan.org/pdfs/HSBA-SIB-17-Rethinking-
DDR-in-South-Sudan.pdf.
160 L UGARD , supra note 145, at 203.
161 M AMDANI , C ITIZEN AND S UBJECT , supra note 90, at 1-2.
162 Mamdani, Making Sense of Non-Revolutionary Violence, supra note
72, at 2.
163 Id.
164 Id.
165 See I DRIS , supra note 12, at 23-41.
166 Mamdani, Making Sense of Non-Revolutionary Violence, supra note
72, at 1.
167 See F RANTZ F ANON , T HE W RETCHED OF THE E ARTH (C. Farrington trans., 1963).
535
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 poor against the poor, and the disempowered against the disenfranchised.
Wealth and poverty are not the determining factors, but rather non-economic factors are the driving force fueling and sustaining what Mamdani has called “nonrevolutionary violence.”
The base of this violence was laid in
the colonial period. Its legacy and institutions were inherited at independence by nationalists.
Rather than reform the institutions inherited at independence, African states have struggled over the past five decades to fix what colonialism left behind. Some countries have demonstrated the will to move forward after the tragedy of colonial administration.
last section, I want to return to the conceptual framework of the
New Sudan, pioneered by the late Dr. John Garang, as an alternative nation-building project.
alternative offers the best solution to the problems of the Sudan in the north, the south, and in the disputed border regions. I will contextualize the discussion by drawing on the experience in
South Africa, where violence was brought to an end without resorting to criminal justice. In this light, the CPA can be seen first and foremost as a political settlement, which brought 21 years of war to an end without anyone standing trial.
NEW SUDAN: A WAY FORWARD
The current study of Sudan suffers from an epistemological weakness, lack of familiarity with the history of the country, and too much emphasis on political systems rather than critically
168 Id.
169 Mamdani, Making Sense of Non-Revolutionary Violence, supra note
72, at 1.
170 See id. at 16-17.
171 In East Africa, the best case that illustrates a successful reform of the colonial state is that of Tanzania under the leadership of President Nyerere.
In his keynote address to the East African Legislative Assembly Symposium in June 2011, Mamdani observed that it is the only country in the region where a group has not been persecuted collectively on a racial or ethnic base.
172 J OHN G ARANG , T HE C ALL FOR D EMOCRACY IN S UDAN 118-42 (Mansour
Khalid, ed., 2nd ed. 1992).
536
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 analyzing the foundation upon which the postcolonial institutions are built.
The notion that the conflict in Sudan is
one between Arabs and Africans, Muslims and Christians, north and south,
can be partially explained by historicizing the legacy of the late colonialism in shaping the very landscape in which debate takes place. No one understood this problem better than Dr. John Garang, who pioneered the vision and concept known as the New Sudan. In redefining the problem in
Sudan from the problem of the south, Garang effectively included all marginalized regions in the struggle for liberation and reform of power at the center.
The national identity crisis of whether Sudan is African or Arab is a contested issue today.
In the North, the emphasis has been placed on the Arab/Islamic character of the state.
With the secession of the south, the
tendency in the north has been to consolidate the Arab identity while silencing all marginal identities within the north.
The opposite phenomenon is taking place in the south where the
173 I DRIS , supra note 12, at 3.
174 Framing the conflict in Sudan as one between “Arabs and Africans,”
“Muslim and Christians,” and “north and south” is misleading. Garang attempted to shift this paradigm by contextualizing the conflict and providing an alternative history and causes of the conflict by linking the cause to a particular form of the state and demanding that power be fundamentally restructured. One of the successes of the SPLM/A under Garang was to redefine the problem in national rather than regional terms. Other scholars have also challenged the radicalized history, which has been dominant in the colonial and postcolonial period. For alternative explanations, see M AMDANI ,
S AVIORS AND S URVIVORS , supra note 12; I DRIS , supra note 12; G ARANG , T HE
C ALL FOR D EMOCRACY IN S UDAN , supra note 172; D ENG , W AR OF V ISIONS , supra note 37; G.
N ORMAN A NDERSON , S UDAN IN C RISIS : T HE F AILURE OF D EMOCRACY
(1999).
175 G ARANG , T HE C ALL FOR DEMOCRACY IN S UDAN , supra note 172, at 118-42.
176 I DRIS , supra note 12.
177 The current crisis in the disputed border regions and the violence in
Darfur are illustrative of the tendency to consolidate an Arab identity while silencing other ethnicities in the north. South Kordofan and Darfur have some of the most diverse, multiethnic, pluralistic communities in the north and west of Sudan. The government in Khartoum has been trying to group these diverse nationalities under one umbrella, Arabs.
537
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 elites have moved quickly to shape the identity of the country as
African, secular and black. It has been noted that this struggle for national identity has been one of the contributing factors to the violence in Sudan.
He wrote: “This multiple denial of a
Sudan which is uniquely Sudanese and not an appendage to
Arabism, Islamicism or Africanism lies at the root of the political problems of the ‘Sudan.’"
easy and simplified answer, which is characteristic of the way the problems in Sudan have been reported in the media.
Norman Anderson rightly dismissed the notion that the problem is ‘Arabs’ against ‘Africans’ and claimed that the relationship between the ‘Arab’ and the ‘African’, north and south, is complex.
Sudan has a historical relationship with the outside
world, including the Mediterranean and Arabia, predating recorded history. During the Islamic era, Muslim Arabs chose to intermarry and assimilate rather than rely on conquest and force.
Garang took this vision a bit further in his analysis of
what constituted the problems of Sudan and offered a model of nation-building rooted in the concepts of unity in diversity, respect for human rights and rule of law, equitable distribution of national resources, devolution of power from the center to historically marginalized regions, and value of multiple identities. Sudan is a melting pot of nationalities, religions, and languages.
There will be no peace if some groups feel
marginalized, intimidated, and territorially besieged. The
178 S HORT -C UT TO D ECAY , supra note 18, at 14.
179 Id.
180 See, generally, Peter K. Bechtold, Darfur, the ICC and American
Politics, 16 M IDDLE E.
P OL ’ Y 149 (2009); Ammina Kothari, The Framing of
the Darfur Conflict in The New York TImes: 2003-2006, 11 J OURNALISM
S TUD . 209 (2010).
181 A NDERSON , supra note 174.
182 M AMDANI , S AVIORS AND S URVIVORS , supra note 12, at 200;
C HRISTOPHER Z AMBAKARI , South Sudan and the nation-building project:
Lessons and challenges, International Journal of African Renaissance
Studies - Multi-, Inter- and Transdisciplinarity (Forthcoming April 16, 2012),
8 (2012).
183 G ARANG , T HE C ALL FOR D EMOCRACY IN S UDAN , supra note 172, at 127.
538
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 problem can be seen in regions that have people with multiple identities: Abyei, Kordofan, Nuba Mountains and Blue Nile. Dr.
Amir Idris, Associate Professor of African Studies and Associate
Chair of the Department of African and African American
Studies at Fordham University, captured this dilemma recently in the Sudan Tribune. He wrote:
I was born and raised in the north by two parents who came from two different worlds. My father came from southern Sudan and my mother was born and raised in the north. I married a woman who is a southern Sudanese. Our two children are proud to define themselves as
Canadian.
Despite the independence of the south, South Sudan is still linked to the north socially and economically.
Oil makes up
98% percent of government income in South Sudan.
the oil fields are located in the south, the port and refineries are located in the north.
The south is so inextricably linked to the north that it can be argued that the south cannot find peace if the north is unstable, and the opposite can be seen as true for the north. The difficulty can be seen in the attempt to solve the problem in Abyei. The referendum on self-determination did not undo relationships forged historically over thousands of
184 Amir Idris, I Hate to Choose: Personal Reflections on the
Referendum, S UDAN T RIBUNE , Nov. 21, 2010, available at http://www.sudantribune.com/I-hate-to-Choose-Personal,37003.
185 The CPA mandated that oil revenue be shared equally between the two parties to the agreement during the interim period. G LOBAL W ITNESS ,
F UELLING M ISTRUST : T HE N EED FOR T RANSPARENCY IN S UDAN ’ S O IL I NDUSTRY 4
(Sept. 2009), available at http://www.globalwitness.org/library/fuellingmistrust-need-transparency-sudans-oil-industry. Agreements over the distribution of oil revenue in post-CPA era have not been finalized. The government in South Sudan depends heavily on revenue from oil, which accounts for 98% of its income. Id. at 7, 17.
186 Id.
187 Id. at 5.
539
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 years, and it did not change the social and cultural fabric of the country.
Rather than to prematurely de-link all relationships between the north and south, Sudan can learn a lesson from the South
African experience where violence was effectively brought to an end, and an inclusive political community, which accounts for the diversity within South Africa, was created and inaugurated with the first election in 1994. South Africa, like Sudan, had the option to perpetuate an endless war or reach a political settlement. It opted for the latter. The terms of the settlement are instructive in settling the crisis in the disputed regions and all marginalized areas in Sudan. The solution in north and
South Sudan demands a similar political imagination like the one in South Africa. A research specialist in South Africa notes this imagination:
“ it was the fact that the contending political forces imagined the future of what South African citizenship might look like after apartheid, and that this imagination was shaped by the historical particularity of state formation in South
Africa, by both its limits and its possibilities.”
This political imagination, crucial in propelling South Africa forward, was summarized in South Africa’s Freedom Charter of
1955. The Charter presented a vision of South Africa that is similar to what Garang envisioned for Sudan, and declared:
“that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of all the people.”
reiterated the concept and premise of the new South Africa. He identified what appears to be the Achilles heel of the nationbuilding project throughout Africa in noting that the challenge today for political leaders was “to build a nation in which all people - irrespective of race, colour, creed, religion or sex - can assert fully their human worth; after apartheid, our people
188 Zambakari, Nation-Building, supra note 91, at 48.
189 Suren Pillay, The Political Imagination of State Reform: Reflections on the Making of Political Community after Apartheid in South Africa,
CODESRIA B ULL ., no. 1 & 2, 2010, at 35, available at http://www.codesria.org/spip.php?article1209&lang=en.
190 The Freedom Charter, A FR .
N AT ’ L C ONG .,
http://www.anc.org.za/show.php?id=28 (last visited Feb. 16, 2012).
540
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 deserve nothing less than the right to life, liberty and pursuit of happiness.”
Mandela also warned that failure to properly manage diversity within an inclusive framework was a recipe for disaster, which destroys the human capital and the potentials of citizens. The New Sudan vision as presented at the Koka Dam
Conference on March 20, 1986, was a conceptual framework for a country that was inclusive of all its multiple ethnic groups, and embracing all nationalities, races, creeds, religions, and genders.
It was a country in which all Sudanese were equal stakeholders.
Specifically, the New Sudan, as initiated by the signing of the CPA, was a country voluntarily united in justice, honor and dignity for all its citizens, regardless of their race, religion, or gender.
To turn the vision into reality required a
shift of historical significance, not only in Sudan, but also in
Africa. Given the legacy discussed in this paper, most countries in Africa have failed to fully reform and move beyond the colonial state and its institutional apparatus, reforming both the center and the sphere of customary authority, which has remained mostly intact since independence. The proposed
Second Republic is a move away from defining the problem in ethnic or regional terms, and defining it in national terms, hence
Garang’s insistence that there was no southern problem, but rather a national problem in Sudan.
This national problem will remain in both the north and the south as long as the institutions at the national and local level of governance remain unreformed.
In South Africa, the African National Congress realized that victory was not possible. It also acknowledged that apartheid
South Africa was a racially exclusive state. The solution was not in re-racializing the post-apartheid state through a demand for a black majority, but rather, de-racializing and reforming the
191 Nelson Mandela, The Future of South Africa, A FR .
N AT ’ L C ONG . (Mar.
1, 1994), http://www.anc.org.za/show.php?id=3652.
192 G ARANG , T HE C ALL FOR D EMOCRACY IN S UDAN , supra note 172, at 118.
193 Zambakari, Nation-Building, supra note 91, at 49.
194 G ARANG , supra note 172, at 118.
195 Id. at 125-28.
541
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 state.
The limit of the South African transition from apartheid
to a post-apartheid democratic system is that it managed to deracialize the civil services and the state at the center, but it continues to uphold the customary sphere without reforming it in the name of tradition. Such is the limit in South Africa, but that is a problem that it is working out as it moves forward. The lesson of South Africa is “[i]t recognized that all belonged and that the creation of a single political community was the goal.
Race, ethnicity and history defined the answer in the past, but will not define it in the future.”
“For north and South Sudan, those who will pay allegiance to the national flag, those who choose to have a common future not bound by the past, those
Sudanese who chose to live side by side as friends and neighbors, will have to put the past aside and work for a peaceful common future.”
That the living must be prioritized
over the dead is the lesson of South Africa.
belongs to “belongs to all who live in it.”
North and South
Sudan belong to the North and South Sudanese.
CONCLUSION
This paper started by demonstrating the successes of the
CPA, which established the Interim Constitution of Southern
Sudan, and effectively ended the war between the north (NCP) and South Sudan (SPLA/M). The CPA, enacted in 2005, formed the semi-autonomous GOSS in the southern part of the Republic of Sudan, and effectively ended the violence that has devastated
Sudan since 1955. A brief history of Sudan was offered to provide a background to the rest of the paper. Next, the plight
196 Pillay, supra note 189, at 37.
197 Id.
198 Zambakari, Nation-Building, supra note 91, at 50.
199 Mahmood Mamdani, Columbia Univ., Lessons of Nuremberg and
Codesa: Where Do We Go From Here? (July 14, 2010), available at http://humanities.ufs.ac.za/dl/userfiles/Documents/00000/98_eng.pdf.
200 A FRICAN N ATIONAL C ONGRESS , T HE F REEDOM C HARTER (1955),
available at http://www.anc.org.za/show.php?id=72.
542
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 of IDPs and refugees was presented, illustrating the daunting task of managing the inflow of displaced people in the various parts of Sudan.
The number of South Sudanese living in the north ranges from 1.5 million to 2 million, and a large number of them will not return to the south due to the difficult living conditions and current instability in the region. Among the key issues that affect both the
GOSS and the GOS are the proliferation of ethnic violence, a disputed border region pending consultation, millions of IDPs stranded throughout the country, and over half a million refugees yet to find a permanent home. A case study was presented to illustrate the tendency for the proliferation of counties in South Sudan. It was argued that this mode of organizing the mass of peasantry preempts the creation of a truly inclusive state, and focuses on a mode of governance that produces many smaller ‘nation-states’ within the larger states in South Sudan. The division is built on the assumptions that the political map must follow the cultural map of a region at the national level and at the county level. The real problem with this logic is that no matter how many counties are created and how much the map of the country and region is redrawn, the political crisis will remain. This political crisis always leads to political violence.
The proliferation of ethnic violence in Sudan is best understood as an indispensable component of the process of state formation and colonial governmentality, deployed to colonize African colonies in the late 19th century. To move forward and pre-empt future violence requires political imagination to rethink an alternative future based on a common future, rather than a common past and descent. The solution for both governments in north and South Sudan is found in
Garang’s conceptual framework of the New Sudan,
which is consistent with the other successful case in the African context,
South Africa’s transition from apartheid to a democracy. The lesson of South Africa is the creation of a single political community inclusive of the diversity within the country. The
New Sudan vision is the most progressive attempt at reforming the state in Sudan. It theorizes a political reform of the colonial state in Sudan, the building of an inclusive community where citizens will not be discriminated against based on race, color, creed, religion, ethnicity or sex. Race, ethnicity and history
201 G ARANG , supra note 172, at 118-42.
543
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 defined the solutions in the past, but race and ethnicity will not define solutions in the future. The solutions to Sudan’s problems cannot be imposed by force; they cannot be externally imposed upon the Sudanese from outside. Any forceful and externally enforced solution has not worked in the past and will not work in the future.
544
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
THE PRICE OF JUSTICE:
HOW THE CAPERTON STANDARD FOR
JUDICIAL RECUSAL FELL SHORT, BUT
OPENED THE DOOR FOR REFORM OF THE
RECUSAL STANDARDS ANYWAY
Student Note
Marisa McGarvey
“It appears that justice is indeed for sale.” -- Hugh
M. Caperton
“Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when – without the consent of the other parties – a man
chooses the judge in his own cause.”
1 Hugh M. Caperton, Address at the National Judicial College’s “Electing
Nevada’s Judges: Protecting Impartiality and Ensuring Accountability (Oct.
18, 2010), in 48 D UQ .
L.
R EV .
727, 732 (2010). Mr. Caperton further stated, “I am a citizen that has experienced firsthand the devastation and destruction that big money campaign donations are causing in judicial elections and ultimately in our courts.” Id.
2 Caperton v. Massey Coal Co., 129 S. Ct. 2252, 2265 (2009) (emphasis added).
545
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
PART I: THE FACTS – JUDICIAL ELECTIONS IN
THE PAST, PRESENT, AND CAPERTON
A.
A B RIEF H ISTORY OF J UDICIAL E LECTIONS IN THE
U NITED S TATES
B.
T
HE
C
URRENT
S
TATE OF THE
N
ATION
C.
T
HE
C APERTON D
ECISION
PART II: THE LAW – THE VARYING STANDARDS
FOR JUDICIAL RECUSAL
A.
T HE P AST : T HE A CTUAL B IAS S TANDARD
B.
T HE P RESENT : T HE
C
APERTON S TANDARD
C.
T
HE
F
UTURE
: T
HE
A
PPEARANCE OF
B
IAS
S
TANDARD
INTRODUCTION
The role of a judge and his or her resulting discretion over a given case form a powerful and central feature of the legal system in the United States. While it is true that a case is
“decided” by a jury, the judge who hears the matter still wields a substantial degree of control over the proceedings, including often having the final say over sentencing.
in which a judge comes to exercise this type of influence is similarly important. In fact, “the question of how we choose our
3 Matthew J. Streb, The Study of Judicial Elections, in R
UNNING FOR
J UDGE
: T HE R ISING P OLITICAL , F INANCIAL , AND L EGAL S TAKES OF J UDICIAL
E LECTIONS 3-4 (Matthew J. Streb ed., 2009), available at http://www.nyupress.org/webchapters/0814740340chapt1.pdf.
546
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 judges, whom we entrust to uphold and interpret our laws, speaks to foundational principles of our judicial branch . . . and our nation as a whole.”
In “the vast majority of states,” the preferred mode of selection for at least some judgeships is by way of judicial elections.
However, the common law rule only dictated that a judge’s recusal from a matter be mandatory when said judge had a direct, personal, and/or pecuniary interest in the matter
before him.
6 It may be that the common law at the time did not
contemplate an era when corporations would be permitted to contribute staggering amounts of money toward judicial elections, and thereafter be called to appear in court before a judge who is aware of the “debt of gratitude”
the corporation for facilitating his elevation to the bench.
The reader may wonder how it is that the Constitution could tolerate such an appearance of bias, whether the bias be real or not, and the Supreme Court ultimately addressed the issue in
2009, in Caperton v. Massey Coal Co.
not explicitly overrule any precedent, it also clearly represented a shift in the law with respect to when recusal becomes mandatory, rather than merely discretionary. This shift is twofold, as the Court both expanded the factual reach of the due process requirement for recusal and clarified this recusal standard as being objective, rather than subjective as under the common law. These two developments now permit constitutional law to address certain circumstances where the
“interest” of the judge at issue cannot be directly tied to the case at hand, in order to reach situations where there is a substantial
4 Justice Sandra Day O’Connor, Keynote Address at the Seattle University
School of Law Symposium, State Judicial Independence – A National
Concern (Sept. 14, 2009), in 33 S EATTLE U.
L.
R EV . 559, 561 (2010).
5 See Streb, supra note 3, at 7. In fact, “[a]lmost 90 percent of all state judges must face voters” at some point in order to remain seated on the bench. Id.
6 Caperton, 129 S. Ct. at 2255.
7 See id. at 2262.
8 Id. at 2252.
547
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 probability that a reasonable person would in fact be biased,
“directness” of the connection with the case notwithstanding.
The following note shall attempt to analyze and clarify the various standards for recusal, including the constitutional minimum standard when a litigant has contributed financially to the campaign of the judge assigned to the contributor’s case, as set forth by the Court in Caperton.
briefly detail the history of judicial elections in this country, provide an overview of some current practices in this area, and then relate a more detailed description of the facts in the
Caperton case itself. In Part II, this note shall examine and evaluate the proposed and actual standards that have been used in order to regulate judicial recusal in the past and present, to wit: the old “actual bias” standard; the somewhat confusing
“probability of bias” standard enacted via Caperton; and the
“mere appearance of bias” standard used by many states and recommended by the American Bar Association, among others.
Lastly, in Part III, this note will look at certain proposed solutions that may function to better protect against corruption than judicial election methods as presently employed.
PART I: THE FACTS – JUDICIAL ELECTIONS IN
THE PAST, PRESENT, AND CAPERTON
A.
A B RIEF H ISTORY OF J UDICIAL E LECTIONS IN THE
U NITED S TATES
Criticism of judicial elections is not a new phenomenon.
Alexander Hamilton clearly vocalized the concern of many of the
Founding Fathers that such a system of selection plainly jeopardized the judiciary’s ability to remain independent and impartial.
10 This risk was highlighted by what America had
learned from the example of England and the contentious interplay between an independent judiciary and a royal sovereign.
Such concern, evidently still relevant today, formed
9 Id.
10 Streb, supra note 3, at 8.
11 Id.
548
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 the basis of the Founders’ implementation of the federal system of executive appointment of judges, subject to legislative confirmation, for lifetime terms.
original colonies also adopted systems of judicial appointment rather than election.
During the mid-1800s, however, the country experienced a relatively rapid shift in the years leading up to the Civil War, and more and more states chose to switch to an election process to select the judiciary.
In fact, by the time of the Civil War, out of thirty-four states in the Union, twenty-four states had made the switch and turned away from judicial appointment.
There have been a myriad of reasons offered by scholars for this dramatic shift in the political process, but most of the explanations offered are rooted in the general attitude of the
American people. This was a time now known by the advent of
Jacksonian democracy, an era that was marked by a surge in support for popular participation in government, which included expansion of the voting pool to include more of the public.
16 This increase in public participation was at least in
part based upon popular resentment for the land-owning class,
12 Id.
13 Id. Seven of the original thirteen states utilized legislative appointment, while five adopted gubernatorial appointments, subject to approval by special legislative committees. Id. at 8-9. Lastly, Delaware copied the federal model, gubernatorial appointment with legislative confirmation. Streb, supra note 3, at 9.
14 Id. at 9. Mississippi was the first such state, amending the state constitution in 1832 to reflect the new requirement of popular election as to all state judges. Id. New York was the second state to do so in 1846, and thereafter the floodgates opened, such that by 1850, seven states had switched to judicial elections in that year alone. Id. In stark contrast to the states that joined the Union pre-1830, the remainder of states who were admitted to the Union from 1846 until Alaska in 1959, all provided for judicial elections at least in some respects. Id.
15 Id.
16 Streb, supra note 3, at 9.
549
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 who were thought to be in control of the judiciary, and a corresponding rise in efforts to end class-based privileges.
The early 1900s brought a new wave of criticism of judicial selection methods, specifically as to popular elections, from new political groups such as the Progressives, joined by the American
Bar Association, still aimed at eliminating corruption on the
The subsequent outcry led to the introduction of nonbench.
partisan elections in certain states, where ballots only contained candidates’ names and did not list his or her associated political party.
This was seen as a compromise between attempts to eliminate the rampant corruption present in most big-city politics at the time, while still maintaining judicial accountability directly to the voting public.
partisan elections were being utilized for judicial selection in twelve of the forty-eight states.
21 However, these states were to
quickly learn by example that this did not provide the muchneeded panacea for political malfeasance on the bench.
Non-partisan elections did not appear to be the solution, as demonstrated by the three states that adopted and then quickly abandoned the process in 1927 in favor of switching back to partisan elections.
A main concern that led to this switch was
17 Larry C. Berkson, Judicial Selection in the United States:
A Special Report, A M .
J UDICATURE S OC ’ Y , http://www.judicialselection.us/uploads/documents/
Berkson_1196091951709.pdf (last visited Mar. 21, 2012)
(updated by Rachel Caufield and Malia Reddick).
18 Id. Such criticism of the popular election method was voiced as early as 1853 at the Massachusetts Constitutional Convention, where delegates deemed the method a failure as implemented in New York, and refused to adopt the same. Id.
19 Streb, supra note 3, at 10. It is worth noting that the first nonpartisan judicial election was held in 1873, in Cook County, Illinois. Id.
20 Id.
21 Id.
22 Id. The three states that had abandoned judicial elections by 1927 were: Iowa, Kansas, and Pennsylvania (note that they are not included as part of the twelve states who were using judicial elections by 1927). Berkson,
supra note 17, at 2.
550
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 the lack of an informed electorate, as political party leaders still controlled the selection of candidates, who were “thrust upon an unknowledgeable electorate, which, without the guidance of party labels, was not able to make reasoned choices.”
response, the American Judicature Society proposed a new process: the retention election.
Exactly what it sounds like, a retention election simply posed to the voting public the issue of whether or not a certain judge should remain on the bench after his or her first allotted term had run.
Retention elections were to take place after a probationary period, with the judiciary initially being chosen via a merit selection plan, which openly acknowledged that the judicial candidate pool would be expanded so as to preclude consideration of “inappropriate partisan factors such as an individual’s party affiliation, party service, or friendship with an appointing executive.”
The advent of retention elections still represented efforts to balance the goal of having an independent judiciary while preserving judicial accountability to the people.
This system was first utilized in Missouri in 1940 and is the most common method used in the United States today although, of course, there are many variations thereof.
However, most modern retention election systems do have certain features in common, such as a non-partisan committee that recruits and screens potential candidates and thereafter submits to the appointing executive a short list, usually three to five candidates, from
23 Berkson, supra note 17, at 2.
24 Streb, supra note 3, at 10.
25 Id. at 10-11.
26 Berkson, supra note 17, at 2.
27 Streb, supra note 3, at 10-11.
28 Id. at 11. California was actually the first to utilize a merit selection plan in 1934; however, Missouri was the first to use this method as it is now known today in 1940, leading to its popular nickname, the “Missouri Plan.”
Id. It is still the mostly commonly used method, although there are differences that vary from state to state. Id.
551
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 which to choose, followed by an unopposed retention election a year or two after appointment.
B.
T HE C URRENT S TATE OF THE N ATION
In the United States, the only country in the world that elects judges, there are at least thirty-six states that utilize at least some form of judicial elections in their court systems.
obviously more than a majority, and therefore, deserves some measure of scrutiny at least equal to that which is applied toward any potential for bias in legislative or executive branch elections. The commonality of the practice is much more troubling in light of the growing involvement of corporate money with respect to judicial elections in particular. Corporate entities have become more free to exercise their “First
Amendment rights” pursuant to recent Supreme Court decisions such as Citizens United v. Federal Election Commission
have seized upon their newfound opportunity in order to influence American politics in another, more hidden manner than the customary lobbying efforts directed toward legislatures.
32 In fact, the amount of contributions made toward
judicial campaigns in the past ten years is estimated to be in excess of $206 million, as compared with the mere $83 million in contributions raised during the 1990s.
29 Berkson, supra note 17, at 2.
30 Id. “Eight states elect all of their judges in partisan elections, and seven states use partisan elections to elect some of their judges. Thirteen states use nonpartisan elections to select all of their judges . . . [and] eight states use nonpartisan elections to select some of their judges.” Id.
31 130 S. Ct. 876 (2010).
32 “Politics makes strange bedfellows and is often a seedy, if not downright ugly, process.” Keith R. Fisher, Selva Oscura: Judicial Campaign
Contributions, Disqualification, and Due Process, 48 D UQ .
L.
R EV . 767, 812
(2010).
33 David L. Baker, Foreword, 58 D RAKE L.
R EV .
657, 658 (2010) (citing
Matthew Mosk, Study Shows Money Flooding into Campaigns for State
Judgeships, ABC N EWS state-judgeships/story?id=10120048).
(Mar. 17, 2010), http://abcnews.go.com/Blotter/study-shows-money-flooding-campaigns-
552
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 figures appear to only represent so-called direct campaign contributions and do not take into account the independent expenditures made by corporate CEOs and the like.
Looking at such extreme numbers begs the question, how can the American people ensure that their judicial system is functioning properly as an independent branch of government, governed solely by the federal and state constitutions, statutes, and common law? How can the public be assured that judges are not falling into the common trap laid for legislators, that of being swung by money and special interest groups far away from the truth, at the price of justice itself?
It seems almost too obvious that “[t]he advent of more money presents more potential for [judicial] recusals and an even greater need for standards for ensuring judicial independence, impartiality, and integrity.”
However, it is common for states to provide for subjective levels of inquiry to determine whether a judge will choose to recuse himself, historically making it “largely a personal decision for judges.”
An example of one such subjective standard is the pre-Caperton standard for West Virginia courts, wherein recusal was mandated whenever a judge determined that his impartiality
“might reasonably be questioned.”
While this standard sounded strict in theory, one was left to wonder what it actually looked like in practice, as generally only the judge himself was left to make and review the decision as to whether or not to recuse himself, based upon his own ability to be impartial. This
34 James Sample, Court Reform Enters the Post-Caperton Era, 58 D RAKE
L.
R EV .
787, 791-92 (2010).
35 To continue on with the theme of rhetorical questions, as one author so eloquently phrased the struggle that the Caperton Court faced, “in the face of well-documented public mistrust of judges continuing to sit and hear cases in such circumstances, as part of more widespread public concerns about the fairness and impartiality of our courts, would applying due process limitations allay those concerns or exacerbate them?” Fisher, supra note 32, at 790-91.
36 Baker, supra note 33, at 658.
37 Id.
38 W. Va. Code of Judicial Conduct Canon 3E(1) (1993).
553
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 circular logic has been accused of rendering “useless the ability of the court to act in any way that resemble[s] a fair tribunal.”
How have standards, such as the foregoing, fared insofar as their effectiveness in achieving recusal is concerned, in cases where a potential for bias arises? One example of this type of standard in play occurred in Wisconsin in 2007, where a judicial run-off resulted in the election of Annette Ziegler. Ziegler received in excess of two million dollars from the lobbying group
Wisconsin Manufacturers & Commerce (“WMC”), which by itself was greater than the sum total of her official campaign monies.
WMC then expended their corporate funds on financing an appeal for, and writing an amicus brief in support of, a tax refund case worth $350 million, in which Ziegler subsequently wrote the 4-3 decision, cast in favor of WMC’s position.
41 The only surprise in this case was that Ziegler was
previously disciplined while serving as a lower court judge, for failing to recuse herself on eleven different cases that concerned a bank where her husband happened to be a director.
Apparently, this prior impropriety did not prove to be an impediment to her later election to the high court. In the words of the now-famous plaintiff Hugh Caperton, “so much for due process.”
If only the 2007 Wisconsin election was the exception instead of the rule; however, developments in other areas of the country undermine that naïve hope. By way of example, in a
2004 election in Illinois, Lloyd Karmeier went on to win the socalled ‘tort wars’ after receiving over a million dollars in contributions stemming from connections to State Farm
Insurance Company, in a heated race between the US Chamber of Commerce-backed Karmeier, and Gordon Maag, supported
39 Caperton, supra note 1, at 731.
40 Sample, supra note 34, at 795.
41 Id. at 796.
42 Id. at 795-96.
43 Caperton, supra note 1, at 731.
554
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 by trial lawyer groups.
Approximately ten million dollars were spent overall between the two candidates.
Upon his win,
Karmeier thereafter cast the deciding vote in State Farm’s appeal of a $450 million damage award, saving the company roughly half of a billion dollars, which some presume to have constituted the quid pro quo between them.
An enlightened Alabama rule now acknowledges the reality of the seeming inability of states to maintain a judicial election system that somehow addresses the very real danger of campaigns and the corresponding necessary funding, which can easily overcome the impartiality of the judiciary. The Alabama law requires, by way of motion, the automatic recusal of its circuit court judges in any case in which a party or his counsel contributed greater than $2,000 to the judge’s campaign.
rule certainly seems to make sense and likely contributes to upholding public confidence in that state’s courts. This is so because, even as to those judges who were not improperly influenced by their campaign contributors, the appearance of impropriety may still be conveyed to the public in many instances. A large part of the populace already cynically views our present day government as being controlled by “big money,” and in recent years this criticism has reached the judicial system as well.
Without the full confidence of the public at large, our legal system lacks any meaningful ability to enforce the law,
44 Adam Skaggs, Judging for Dollars, T HE N EW R EPUBLIC (April 3, 2010,
12:00 AM), http://www.tnr.com/article/politics/judging-dollars.
45 Streb, supra note 3, at 1.
46 Skaggs, supra note 44.
47 William E. Raftery, “The Legislature Must Save the Court from
Itself”?: Recusal, Separation of Powers, and the Post-Caperton World, 58
D RAKE L.
R EV .
765, 768 (2010).
48 See, e.g. Baker, supra note 33, at 660; Fisher, supra note 32, at 778
(discussing the “already widespread public perception that justice is for sale and that only the wealthy can expect to receive it.”); and Bert Brandenburg,
Big Money and Impartial Justice: Can They Live Together?, 52 Ariz. L. Rev.
207, 207 (2010) (discussing his concern that “[m]any Americans believe that justice is for sale.”).
555
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 and according to the plaintiff in Caperton, “[o]ur citizens have lost faith in our courts.”
The state of the nation’s judicial electoral systems has become such a concern that many members of the judiciary have voiced their aversion to the widely-felt and significant influence of corporate money. The Chief Justice of the Oregon Supreme
Court, Paul J. De Muniz, has stated that the reforms currently being proposed are not adequate to stem what he predicts to be the coming tide of “ugliness,” as he refers to “big money, partisanship, attack ads, etc.”
51 These were his remarks at a
conference that was celebrating that particular court’s 150th anniversary; hence, it is clearly a matter of great importance to him. In fact, the advice he gave “for the Oregon judiciary of the future” is to “add merit selection of judges to the discussion,” adding that this is a “public discussion that needs to begin now.”
49 This holds true regardless of the legitimacy and/or legal accuracy of a specific ruling or case. With respect to Caperton, one scholar noted, “[N]o matter whether the decision on the merits was right on the mark, nothing would shake the public perception that justice in West Virginia was for sale.”
Fisher, supra note 32, at 815. As to the topic generally, he went on to state that:
“[e]ven a biased judge can render a correct decision. Doing so, however, diminishes public confidence not only in the correctness of that particular decision but in the legitimacy of judicial decisionmaking in general. . . With so many fine legal minds misunderstanding the overriding importance of public perceptions of fairness and impartiality to the legitimacy of the judiciary itself, it is small wonder that recusal and disqualification law is in such disarray.”
Id. at 815-16.
50 Caperton, supra note 1, at 731. In other words, “[m]oney is money, and it’s all about the appearance.” Fisher, supra note 32, at 814.
51 Paul J. De Muniz, Chief Justice, Oregon Supreme Court, Past is
Prologue: The Future of the Oregon Supreme Court (Oct. 9, 2009), in 46
W ILLAMETTE L.
R EV .
415, 441 (2010).
52 Id. at 442.
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C.
T HE
C
APERTON D ECISION
Perhaps the aforesaid elections were surprising because they took place in the United States of America, and not in some remote and isolated country where rampant corruption in the courtroom might unfortunately be expected. After all, our
Constitution guarantees due process to all, not to “some citizens, or citizens with lots of money, or citizens who support special interest groups that are spending millions on judicial elections; it says every citizen.”
In June of 2009, the Supreme Court agreed to hear a noteworthy case relating to judicial elections, in order to finally set some sort of national standard. Whether that standard will actually be efficient in halting the type of implicit bias resulting from large special-interest donations in support of judicial election campaigns is a question that will be addressed in Part II. As to the “extraordinary situation where the
Constitution require[d] recusal”
intervention by the highest Court in the land, the story begins at the Upper Big Branch Mine in West Virginia.
This mine set the scene for a verdict of liability for fraudulent misrepresentation, concealment, and tortious interference with existing contractual relations against the A.T. Massey Coal
Company and affiliates (collectively, “Massey”), who had, according to the jury findings, intentionally driven another company out of business.
This finding was rendered in 2002 by a West Virginia jury that awarded $50 million in compensatory and punitive damages against Massey. All of defendant’s post-trial motions disputing the verdict and the monetary award were denied by the trial court, which found that
Massey had acted intentionally and with “utter disregard” for the rights of plaintiffs.
Conveniently, subsequent to this disastrous verdict for
Massey, but prior to the lapsing of the permissible time for an appeal, the 2004 elections for the West Virginia Supreme Court
53 Caperton, supra note 1, at 727.
54 Caperton, 129 S. Ct. at 2265.
55 Id. at 2257.
56 Id.
557
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 of Appeals occurred.
This is, of course, the same court in front of which Massey’s appeal ultimately landed. In hindsight, one can see how Massey’s chairman/CEO/president, Don
Blankenship, decided that the most efficient course of action was to support the campaign of Brent Benjamin, who was running against the incumbent Justice McGraw.
Naturally,
Blankenship did not stop with his $1,000 donation to
Benjamin’s campaign committee, an amount which is equal to the maximum allowable donation by statute. He additionally contributed approximately two and a half million dollars to a lobbying organization entitled “And For the Sake Of the Kids.”
Notwithstanding the nature of such a benign name being given to what could be termed a morally ambiguous cause, what can be proven by the facts is that Blankenship alone contributed more than two-thirds of the total monies raised by this group.
Lastly, Blankenship also spent in excess of half of a million dollars relative to independent expenditures such as direct mailings, television advertisements, etc.
Benjamin went on to win the election with 53.3% of the vote, and one can only assume at least in part due to the roughly three million dollars spent by Blankenship alone, which was “more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee.”
61 Despite any negative implications the public may
have drawn from these excessive donations, Justice Benjamin denied plaintiffs’ motion to disqualify himself based on the alleged conflict in April of 2006.
2006, Massey filed a petition to appeal the jury verdict, and the case was granted review by Supreme Court of Appeals.
In light
57 Id.
58 Id.
59 Id.
60 Caperton, 129 S. Ct. at 2257.
61 Id.
62 Id.
63 Id. at 2258.
558
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 of the surrounding circumstances, it is perhaps not a surprise to learn that in November of 2007 the fifty million dollar verdict was reversed. It was a surprise to the plaintiff, Hugh Caperton, though, who has stated, “after nine years of delays, motions, pretrial hearings, depositions, and a trial that lasted over seven weeks . . . you are now finally sitting in front of the West Virginia
Supreme Court of Appeals hoping, that after all these years, justice will finally be served.”
64 Alas, there would be no justice
for Mr. Caperton, who alleged that his business had been completely destroyed by defendant Massey, and said that his feeling about the case “can only be described in one word -- sickening.”
The state Supreme Court’s reversal was accompanied by an opinion (joined by Justice Benjamin) that openly admitted that the defendants’ actions had “warranted the type of judgment rendered”
by the jury. Yet regardless of such an admission, the West Virginia Court still reversed the damage award, based upon certain vague procedural niceties, such as a contractual forum selection clause.
67 Notwithstanding any legal validity the
majority may have seen, “[i]t was the first time in the 147 year history of West Virginia that a jury award had been overturned on the grounds of forum selection,”
and therefore it was clearly an extraordinary decision. The dissent blatantly accused the majority’s opinion of being “morally and legally wrong.”
After the stunning reversal, plaintiffs again looked to disqualify certain justices hearing the matter, and one such
64 Caperton, supra note 1, at 728.
65 Id. at 727-29. Mr. Caperton’s actual remarks with respect to the collapse of his business were as follows: “[I]magine all of your hard work being destroyed by one of the nation’s largest coal companies, who coveted the business that you had worked so hard to build, not by using ethical competitive business practices, but by engaging in an illegal and fraudulent scheme that they had planned for years.” Id. at 727-28.
66 Caperton, 129 S. Ct. at 2258.
67 Id.
68 Caperton, supra note 1, at 729-30.
69 Caperton, 129 S. Ct. at 2258.
559
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 application was granted. Justice Maynard recused himself after photographs of his vacation taken with none other than Don
Blankenship were made public, a vacation which took place on the French Riviera, during the pendency of the case.
Similarly, on the other side, Justice Starcher recused himself pursuant to the defendants’ request, which was apparently based upon
Starcher’s “public criticism of Blankenship’s role in the 2004 elections.”
71 In fact, Justice Starcher even went so far in his
recusal memorandum as to urge Justice Benjamin to disqualify himself as well, but his colleague’s suggestion went unheeded.
Thus, it came to be that Justice Benjamin was then acting as the
Chief Justice with respect to the rehearing that the case was granted.
In his capacity as such, Justice Benjamin denied plaintiffs’ third motion for his disqualification, which was this time accompanied by a popular poll showing that over sixty-seven percent of West Virginia citizens doubted his ability to remain fair and impartial.
73 He then once again presided over a divided
court that reversed the damages award. This time the dissent went even further, calling the majority opinion “fundamentally unfair” and acknowledging that Justice Benjamin’s failure to recuse himself had led to “genuine due process implications arising under federal law.”
74 This in conjunction with the
accusation that “justice was neither honored nor served,”
perhaps have influenced the Supreme Court’s decision to grant
certiorari in this matter, which they later characterized as a set of “extreme facts” leading to a situation where the “probability of bias…[rose] to an unconstitutional level.”
Such a characterization constitutes a euphemism for what a
70 Id.
71 Id.
72 Id.
73 Id.
74 Id. at 2258-59.
75 Caperton, 129 S. Ct. at 2258.
76 Id. at 2265.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3
“reasonable” citizen might have called this situation, and what the plaintiff in the case did call it – “a black eye on the judicial system.”
PART II: THE LAW – THE VARYING STANDARDS
FOR JUDICIAL RECUSAL
A.
T HE P AST : T HE A CTUAL B IAS S TANDARD
According to the Caperton Court, precedent with respect to judicial recusal mandated judicial recusal based on the notion of the “traditional common law prohibition on direct pecuniary interest . . . [and] a more general concept of interests that tempt adjudicators to disregard neutrality.”
seminal case on this issue was Tumey v. Ohio,
where the Court held that due process only requires recusal in those instances where the common law rule - “a direct, personal, substantial, pecuniary interest”
80 - was triggered. Such was the case in
Tumey, where a mayor, who doubled as a judge, received supplemental compensation for convicting and prosecuting any violations of the state liquor trafficking prohibition.
stated that the general rule provided for disqualification was “an interest in the controversy,” but noted that the law was uncertain relative to “what the degree or nature of the interest must be.”
82 However, the mayor’s “direct personal pecuniary
interest in convicting the defendant who came before him for
77 Caperton, supra note 1, at 731.
78 Id. at 2260.
79 273 U.S. 510 (1927).
80 Id. at 523.
81 Id. at 518. The municipal regulation provided for this by permitting the mayor, deputy marshal, and certain others involved in the prosecution, to retain the amount of fees and costs that were to be paid by the defendant. Id.
Therefore, if the defendant was not convicted and ordered to pay, there were no funds from which to additionally compensate the mayor et al.
82 Id. at 522.
561
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 trial, in the $12 of costs imposed in his behalf” was found to be sufficient as a violation of the constitutional guarantee of due process.
Unfortunately, the Court did not provide future litigators with much specificity as to that requisite degree or nature of the interest; however, they did distinguish a situation where the “[i]nterest is so remote, trifling, and insignificant that it may fairly be supposed to be incapable of affecting the judgment of . . . an individual.”
interests, it was held to deprive a criminal defendant of due process “to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him.”
linchpin of the analysis was that the interest be “direct.”
Otherwise, ruled the Tumey Court, mandatory judicial recusal was left solely up to the discretion of state legislatures relative to
“mere” issues such as “kinship, personal bias, state policy, [and] remoteness of interest.”
In the same vein, mere personal bias or prejudice were consistently deemed to be insufficient so as to require recusal as a matter of due process, inasmuch as “the traditional commonlaw rule was that disqualification for bias or prejudice was not permitted,” based upon a circular legal presumption that judges
In fact, were impartial due to their sworn oath to be impartial.
those types of cases were stated as being exclusively within the purview of state legislative discretion.
By way of example, in
Lavoie, a state justice was required to recuse himself due to his standing as a lead plaintiff in a lawsuit pending before the trial court where the facts were substantially the same as those in the
83 Id. at 523.
84 Tumey, 273 U.S. at 523 (quoting Thomas M. Cooley & Victor H. Lane,
A T REATISE ON THE C ONSTITUTIONAL L IMITATIONS , 594 (7th ed. 1903)).
85 Id.
86 Id.
87 Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986).
88 Id. at 821 (citing Patterson v. New York, 432 U.S. 197, 201-02 (1977)).
562
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 appellate matter in which he cast the deciding vote.
Conversely, in addressing appellant’s other claim, the Court did not require recusal with regard to the other justices in that case, who were presumed to have “a slight pecuniary interest” in the case, as potential litigants in a class-action suit that could have resulted from the case at issue.
However, the Court distinguished the hypothetical instance as not mandating recusal because that interest was “too remote and insubstantial to violate the constitutional constraints.”
Lavoie is noteworthy as an intermediary case between
Tumey and Caperton because a careful reading of the matter shows the seeds out of which Caperton will grow. Although the
Lavoie Court states that the decision does not address “whether allegations of bias or prejudice by a judge . . . would ever be sufficient under the Due Process Clause to force recusal,” in the next breath it is acknowledged that in “the most extreme of cases” presenting an issue of bias, disqualification would in fact be constitutionally required.
92 Of course, the Lavoie Court
quickly went on to note that the case at hand fell “well below that level” and held that the basis of the decision was not “mere
89 Id. at 813-14. The defendant insurance company was sued for a bad faith refusal to pay a claim, and the verdict of three and a half million dollars in punitive damages awarded against them (the largest such punitive award ever in Alabama) was affirmed on appeal in an opinion authored by the justice at issue in Lavoie. Id. at 813. The company later learned, while the case had been pending, that the justice had filed two suits of his own against insurance companies for bad faith refusals to pay claims, also seeking punitive damages. Id. Therefore, the Supreme Court held that his affirmance in the underlying Lavoie matter “had the clear and immediate effect of enhancing both the legal status and the settlement value of his own case.” Id. at 814.
90 Lavoie, 475 U.S. at 814. The other justices were seen as potential litigants in a class-action suit filed by the later-disqualified justice inasmuch as the action was on behalf of all state employees insured under the group insurance plan. However, the Supreme Court deemed this to be “highly speculative and contingent” because the court hearing the class action suit had not yet even certified a class, “let alone awarded any class relief of a pecuniary nature.” Id.
91 Id. at 825-26.
92 Id. at 821.
563
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 allegations of bias and prejudice,” but rather, the Justice’s “more direct stake in the outcome.”
93 Still, the door was certainly left
open for future cases where the allegations of bias and prejudice could be held sufficient to establish a violation of due process.
In sum, to use the oft-quoted language by which the twentieth-century Supreme Court tested whether recusal is required, recusal was required in any situation that would “offer a possible temptation to the average man as a judge to forget the burden of proof . . . or which might lead him not to hold the balance nice, clear and true . . . .”
94 Yet, it is still a frequent
practice to permit the judge who has been asked to recuse himself to exercise total discretion over whether this standard has been triggered. Twenty-four states either explicitly permit a trial judge to hear his own recusal motion or are silent on the subject and therefore implicitly permit it.
require another judge to hear the matter either initially or at least in the event that the hearing judge declines to recuse himself.
96 The law is even more lenient for appellate judges, and
at least seven states do not overtly apply the trial court recusal rules to their appellate courts.
while in the past the Supreme Court used strong language to
93 Id. It may be of interest to the reader that prior to the Supreme Court’s hearing of this case, the Alabama justice at issue “retired from the court for health reasons.” Id. at 823 n.2.
94 Tumey, 273 U.S. at 532.
95 Raftery, supra note 47, at 767-68. Missouri and Oklahoma expressly permit the practice, while the laws of Alabama, Arizona, Connecticut,
Georgia, Hawaii, Indiana, Iowa, Kentucky, Minnesota, Mississippi, Nebraska,
New Hampshire, New York, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Utah, Vermont, West Virginia, Wisconsin, and Wyoming are all silent on this issue. Id. at nn.5-6.
96 Id. at 768. The states that require another judge to hear the matter
(either initially or upon the hearing judge’s declining to recuse himself) are
Alaska, Arkansas, California, Colorado, Florida, Illinois, Louisiana, Montana,
Nevada, North Dakota, Oregon, South Dakota, Texas, Virginia, and
Washington. Id. at n.7.
97 Id. at 768. The following states have laws that do not expressly state that trial judge recusal rules also apply to appellate judges: Illinois, Kansas,
Nevada, North Carolina, Ohio, South Dakota, and Washington. Id. at n.16.
564
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 discuss the issue of judicial recusal, the actual standards that were set forth, for the most part, lacked the teeth for effective enforcement.
B.
T
HE
P
RESENT
: T
HE
C APERTON S
TANDARD
The Court achieved a subtle shift in the way one can interpret precedent for mandatory recusal through the holding of Caperton. While the standard enacted therein is still objective, and the Court effected this shift without the outright overruling of any cases, Caperton noted that the Court has identified since Tumey “additional instances, which, as an objective matter, require recusal.”
The shift in the standard is termed subtle because whereas prior to this decision, language was employed to imply the requirement of actual bias, as under the common law, the Caperton court re-framed the inquiry, to examine whether under the circumstances, “experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”
Seemingly for the first time, the Court boldly held that under its objective standard, recusal may still be constitutionally required in some instances “whether or not actual bias exists or can be proved.”
Some have posited that the novelty of the decision stems partly from the Court’s allowance of solely the past connection between Justices Benjamin and Blankenship “to serve to create an assumption of bias” despite the fact that there was “no present or future effect on the judge.”
The Caperton Court further went on to specifically point out that even though Justice Benjamin of West Virginia “did undertake an extensive search for actual bias,” the inquiry did not stop there.
102 While still treading lightly, the Court did at
98 Caperton v. Massey Coal Co., 129 S. Ct. 2252, 2259 (2009).
99 Id. (citing Withrow v. Larkin, 421 U.S. 35, 47 (1975)) (emphasis added).
100 Id. at 2265.
101 Gerard J. Clark, Caperton’s New Right to Independence in Judges, 58
D RAKE L.
R EV .
661, 704-05 (2010).
102 Caperton, 129 S. Ct. at 2265.
565
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 least acknowledge the complexity of a system that essentially relies on self-policing. “The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules.”
This so-called private inquiry, reasoned the Court, was so difficult partially because it was possible for a judge who did not recuse himself to have “conducted a probing search into his actual motives and inclinations,” without finding anything to be improper,” although the Due Process Clause may have mandated otherwise.
The Caperton Court was careful to point out that there had been no claim of any overt quid pro quo arrangement, but in the same breath, they also recognized Blankenship had made “extraordinary” donations to a judicial campaign while having “a vested stake” in a case pending before the same judiciary.
Therefore, in the eyes of some commentators, the case was “purely circumstantial, relying on inference and supposition,”
but to others, such as this author, and perhaps the Court, the inference of bias was the only logical conclusion to be drawn from the facts.
An important detail in the Caperton decision was the Court’s holding regarding what was not relevant to recusal, i.e. “whether
Blankenship’s campaign contributions were a necessary and sufficient cause of Benjamin’s victory.”
Taking this to its logical conclusion, it seems as though in the future it will not be incumbent upon the party seeking recusal to have to prove any actual connection between the judicial win in the election and the financial contributions from an adverse party. This is another way in which the Court seems to speak in more relaxed language regarding the circumstances where judicial recusal must be required, by easing the burden of proof to that of a realistic level, inasmuch as the aforesaid connection between the victory and the money would likely be extremely difficult to demonstrate.
103 Id. at 2263.
104 Id.
105 Id. at 2265.
106 Clark, supra note 101, at 705.
107 Caperton, 129 S. Ct. at 2264.
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Moreover, the Caperton court provided a list of factors for assistance in evaluating the new standard, and such factors are as follows: “the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”
Again, this is a subtle but distinct shift away from the previous decisions, which spoke harshly of needing to prove an actual pecuniary interest of the judge was involved before he would be forced to recuse himself. In Caperton, by contrast, the Court highlights certain aspects that make the case ripe for recusal, which will surely provide guidance to future litigators and the judiciary themselves. “The temporal relationship between the campaign contributions, the justice’s election, and the pendency of the case is also critical,” said the Court, emphasizing the reasonable foreseeability that the Caperton appeal would land in front of the new justice, which existed at the time the contributions were being made.
Of course, the Caperton Court also addressed concerns that had been raised over the potential flood of litigation involving judicial recusal that could have resulted from the decision.
Several times it was noted how rare the circumstances that had presented themselves in Caperton really were: “[n]ot every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case.”
110 An attempt was made to create a definite
bright-line around constitutionally-required recusal, as opposed to recusal which may be called for merely by the standards of professional ethics, by citing to precedent indicating that such constitutionally-required recusal was only mandated in those extremely atypical cases where “the probability of actual bias is too high to be constitutionally tolerable.”
108 Id.
109 Id. at 2264-65.
110 Id. at 2263.
111 Id. at 2257 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).
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Nevertheless, despite the limitations that were placed around its holding, Caperton was a significant case because, as the
Court itself stated, for the first time they were looking at the framework previously set up specifically in the “context of judicial elections” and not necessarily as presented “in the precedents we have reviewed and discussed.”
the first time something other than “a direct pecuniary interest” was held to be sufficiently influential so as to require a judge to recuse himself pursuant to the federal Constitution, and not merely vis-à-vis a state’s judiciary code or rules of professional responsibility. “Though not a bribe or criminal influence,
Justice Benjamin would nevertheless feel a debt of gratitude to
Blankenship for his extraordinary efforts to get him elected.”
This phrase will surely be used in future litigation as symbolic of the many indirect ways in which a judge can be biased toward a case besides having a “direct” monetary stake in the case’s outcome.
In sum, while previously the Court had spoken of “an objective standard,” it was not until Caperton that the commonlaw burden of needing to show actual bias on the part of the judge was eliminated. The Caperton court clarified that from now on, the reviewing court must not look into the subjective existence of bias, but rather the objective likelihood of bias in that particular situation or whether there is an unconstitutional
“potential for bias.”
In particular, when the issue arises with respect to campaign contributions by a party, the court must look to see if there is a “serious risk of actual bias . . . when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”
Despite the progress that was made in Caperton, it is still the law that the Constitution only requires judicial recusal under an
112 Id. at 2262.
113 Caperton, 129 S. Ct. at 2262.
114 Id.
115 Id. at 2263-64.
568
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 extraordinary factual scenario, begging the question “what good a precedent on an extreme case does for the more run-of-themill cases with unjust results springing from judicial bias.”
Yet the very same opinion also urges state governments to enact broader rules, requiring recusal in many more situations. The
Caperton court explicitly advised states to do so based upon their vital state interest in maintaining public confidence in courts, and the importance of the same is demonstrated by way of a June 2010 poll done by the organization Justice at Stake, which revealed that eighty-one percent of Americans felt that a judge must not hear the case of anyone who contributed more than $10,000 to his campaign.
If this is the case, some commentators have wondered why the Supreme Court only went so far as to set this constitutional floor, expecting states to do the rest, instead of making the federal Constitution demand more as part of the guarantee of due process. Perhaps it is because “Caperton points out, in stark relief, the incompatibility of elected judges and the ideal of an independent judiciary,” and it may even be said more dramatically that “Caperton is at war with judicial elections.”
It may be that the Supreme Court, sensing this inevitability that
“[j]udges concerned about their reelection will not be independent . . . [and] will sacrifice justice and the rule of law to public opinion,”
was hesitant to go any further in essentially condemning what is the preferred practice for judicial selection in a majority of states.
C.
T HE F UTURE : T HE A PPEARANCE OF B IAS S TANDARD
Despite the Supreme Court’s failure to expressly implement the mere appearance of bias as the constitutional standard for judicial recusal, the Caperton decision certainly paves the way for such a standard in the future. The Court acknowledged in the decision that almost every state, including West Virginia, has
116 Clark, supra note 101, at 706.
117 Caperton, supra note 1, at 734.
118 Clark, supra note 101, at 705-06.
119 Id. at 706.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 adopted the American Bar Association’s objective standard for recusal, and they urge the states to go further than the constitutional floor set in Caperton, presumably by strictly applying the ABA standard.
That standard is contained in the
Model Code of Judicial Conduct, and states that “[a] judge shall avoid impropriety and the appearance of impropriety.”
The comment to the 1990 Code further sets forth a test, “whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired.”
While in theory this standard sounds as though it should be more than sufficient to redress concerns over an elected judiciary’s impartiality, apparently in practice it has not served this function, based upon instances such as those discussed in
Part I. Perhaps this is because the language of this standard, similar to other recusal standards, is highly vague. After all,
“[q]uestions about ‘impartiality’ or ‘public perception’ or ‘the average man as judge’ lack precision. The Supreme Court calls these standards ‘objective,’ but they are not. Imprecise standards provide uncertain guidance and invite disputes.”
This formed part of the concern for the Caperton dissent who argued that the majority decision was likely to lead to a flood of litigation. The dissent pointed out many seemingly benign situations that, according to them, might constitute a probability of bias under the Caperton standard. Clearly positing a slippery slope argument, the dissent stated that the following “could give rise to a ‘probability’ . . . of bias: friendship with a party or lawyer, prior employment experience, membership in clubs or associations, prior speeches and writings, religious affiliation, and countless other considerations.”
The dissenting opinion, written by Chief
Justice Roberts, also came up with forty difficult and complex
120 Caperton, 129 S. Ct. at 2266.
121 M ODEL C ODE OF J UDICIAL C ONDUCT Canon 1 (2011) (emphasis added).
122 M ODEL C ODE OF J UDICIAL C ONDUCT Canon 2A cmt. (1990).
123 Clark, supra note 101, at 702.
124 Caperton, 129 S. Ct. at 2268 (Roberts, J., dissenting).
570
Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 questions, regarding the meaning and scope of the majority decision’s language, that courts will now be forced to consider
“[w]ith little help from the majority.”
Of course, it is likely that a similar list of questions concerning the specifics of the rule could be formulated for almost any important Supreme
Court decision; however, this irony is lost on the Caperton dissent. Furthermore, courts engage in complicated analyses to decide cases on a regular basis, and there is no reason why they should not have to do so relative to the extremely important issue of judicial recusal. The issue is so important because it has the potential to undermine the fundamental basis of our legal system: that of free and fair access to the courts by any citizen.
While the dissent may have legitimate concerns and while the majority may have only imposed the absolute bare minimum as a constitutional standard, there is still hope for the future. In
125 Id. at 2269-72. By way of example, question number nine asks:
What if the case involves a social or ideological issue rather than a financial one? Must a judge recuse from cases involving, say, abortion rights if he has received
‘disproportionate’ support from individuals who feel strongly about either side of that issue? If the support wants to help elect judges who are ‘tough on crime,’ must the judge recuse in all criminal cases?
Id. at 2269.
Question number thirty-three queries:
What procedures must be followed to challenge a state judge’s failure to recuse? May Caperton claims only be raised on direct review? Or may such claims also be brought in federal district court under 42 U.S.C. § 1983, which allows a person deprived of a federal right by a state official to sue for damages? If § 1983 claims are available, who are the proper defendants? The judge? The whole court? The clerk of court?
Id. at 2271.
The remaining thirty-eight questions are similarly cumbersome. In fact, one scholar even inquired as to “whether some makeweight questions were included in order to yield the magic total of forty?” Fisher, supra note 32, at
817.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 light of Caperton, courts and scholars across the country are reviewing and discussing both the federal constitutional floor and the standards of individual states. The renewed interest in the topic has already generated feedback and public commentary on both sides of the issue, and same can certainly be viewed as a step in the right direction. The ABA’s Standing
Committee on Judicial Independence, as part of its Judicial
Disqualification Project launched in 2007, has taken initiative and issued a new set of recommendations in the summer of
2009 in response to the Caperton decision.
Such recommendations provide much of the necessary detail and clarity in how to evaluate the “mere appearance of bias” standard by setting forth specific procedures and rules that need to be adopted as well as suggesting specific data that should be gathered in order to help judges make better decisions relative to recusal.
Some of the ABA recommendations include:
“assigning contested disqualification motions to a different judge,” “adopting a de novo standard of appellate review in matters in which judges’ decisions not to disqualify themselves are challenged,” “establishing procedures for review of
[decisions by appellate court judges to deny recusal motions] by the remainder of the court, by a specially constituted court, or by an advisory board,” “adopting judicial substitution or peremptory challenge procedures for trial judges,”
“disseminating data about judicial disqualification within their jurisdictions,” “encouraging judges to explain the reasons for their judicial disqualification decisions,” and “providing more systematic guidance to the judiciary about when a
126 Joan C. Rogers, Draft ABA Report Reviews Rules and Processes for
Judicial Recusal, Recommends Improvements, 77 U.S.L.W.
1782 (2009),
available at http://www.americanbar.org/content/dam/aba/images/ judicial_independence/lawweek_case_focus.pdf.
127 Id.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 judge's impartiality might reasonably be questioned.”
Moreover, the ABA also provided special guidance for states that utilize judicial elections, by setting forth a list of factors to be considered when a judge’s impartiality has been, or may reasonably be, questioned due to campaign contributions.
These factors are as follows:
“[t]he level of support,” “any distinction between the direct contributions or independent expenditures,” “[t]he timing of the support in relation to the case for which disqualification is sought,” and “the relationship, if any, between the supporter and (i) any of the litigants, (ii) the issue before the court, (iii) the judicial candidate, and
(iv) the total support received by the judicial candidate and the total support received by all candidates for that judgeship.”
Thus, despite the Supreme Court’s reluctance to crack down on mandatory judicial recusal, the fact that they addressed the issue at all has already led to some noticeable effects. For those champions of the Constitution who agree with the Court that recusal can be mandated by the guarantee of due process, these effects are both beneficial and welcome changes. More than half of the states have been revising their judicial conduct codes based upon the 2007 ABA Model Code, and a few have already
adopted a new code.
Arizona changed its code to now reflect the ABA’s revisions, including a new rule that makes recusal mandatory when a judge is made aware that a party and/or his counsel have contributed a sum total within the prior four years
that exceeds a certain amount.
128 Clark, supra note 101, at 699 (quoting Standing Comm. on Judicial
Independence, ABA, R EPORT TO THE H OUSE OF D ELEGATES 2-3 (2009)).
129 Id. at 700 (quoting Standing Comm. on Judicial Independence, ABA,
R EPORT TO THE H OUSE OF D ELEGATES 3 (2009)).
130 Rogers, supra note 126, at 4.
131 Id.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 acknowledging that the Supreme Court’s decision ultimately did not change the result in his situation, recognized the case’s
“tremendous impact on our judicial system,” insofar as it gave
“judges a standard in which to follow with respect to their recusal from cases involving large contributors.”
opinion by itself only provided a vague framework for judicial recusal in atypical cases, by expanding the reach of the federal
Constitution at least beyond the common law, it left the door wide open for states to reform their own standards, and sparked much-needed discussion on the issue. This dialogue is the hidden treasure of the opinion, and the true legacy of Caperton.
PART III: SOLUTIONS
Former Supreme Court Justice Sandra Day O’Connor has tirelessly worked since her retirement from the Court to educate and reform the negative public perceptions that have come to be associated with judicial elections and the supposed unfairness of the legal system.
133 The current system being utilized in
Arizona, her home state, is offered as an example of how to mitigate the dangers associated with traditional political elections, in order to preserve the appearance of an independent judiciary. Arizona maintains nonpartisan judicial nominating committees, made up of both attorneys and non-attorneys, that are tasked with reviewing all applications for a vacant seat on
132 Caperton, supra note 1, at 733.
133 Fisher, supra note 32, at 791. Fisher wrote:
[T]he selfless and nonpartisan labor of many people, including retired Justice Sandra Day O’Connor and countless others for whom the health, and indeed the survival, of an independent judiciary – the bulwark erected by the Founders against self-aggrandizement and abuse of power by the political branches – is of paramount importance to the welfare of our democracy. That health, and that survival, are being challenged by a significant diminution in public trust and confidence in the judiciary, particularly at the state level.
Id. at 791-92.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 both the superior and appellate level courts.
completing said review, the committee then submits a list of the three most qualified candidates, of which no more than two may be from the same political party, to the governor for a final
135 The committee has a set of
appointment decision.
qualifications to be considered in their review, for the most part based upon the candidate’s meritorious qualities, as well as the geographic diversity of the jurisdiction.
for a term certain, and thereafter in an uncontested retention election, the public can vote yes or no in order to keep or remove the judge.
137 If so removed, the committee begins the process
again to fill the vacancy, while the electorate is benefitted by virtue of another commission tasked with rendering judicial performance reviews, which are made publically available.
Justice O’Connor herself has stated when speaking in the context of Arizona’s system, “I would love it if more states would move toward some kind of a selection system with appointments recommended by a commission and retention elections.”
Beyond any drastic changes in a state’s overall method, she also offers more minor suggestions that could be easily implemented.
Longer judicial terms once elected is one such suggestion.
She further recommends increasing public awareness by way of disseminating “voter guides” that contain “performance
134 Rebecca White Berch, A History of the Arizona Courts, 3 P HOENIX L.
R EV . 11, 32 (2010). Note that in counties with populations of less than
250,000, the superior court judges may be chosen via the merit selection committees, or via nonpartisan elections, at the discretion of each such county. Streb, supra note 3, at 8; Berch, supra note 134, at 33-34.
135 Berch, supra note 134, at 32.
136 Id. at 33-34.
137 Id. at 32-33. As to the length of the term, superior court judges remain on the bench for four-year intervals. Appellate judges are initially appointed for two years, then face a retention election, and thereafter remain for six-year intervals. Id. at 32.
138 Id. at 34.
139 O’Connor, supra note 4, at 565.
140 Id.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 evaluations” of the incumbent judges in order to foster moreeducated voting decisions.
Finally, she also advises that our governments reconsider laws surrounding judicial recusal and election funding,
two issues that are obviously closely intertwined.
With respect to other ways in which the judicial selection process can be improved in those states that utilize elections in some form or another, there is a quite simple solution that may negate some of the perceived injustice. All states should amend their judicial conduct codes to include a provision requiring that any denial of a motion to disqualify must be accompanied by an explanation in writing, on the record.
Along the same lines, some scholars have recommended that states should also implement a requirement of a sworn affidavit executed by counsel for the party requesting disqualification, stating the exact facts that necessitate the recusal.
The judge would then be required to accept as true all facts that were stated therein.
This would eliminate prolonged and contested disputes between the party and the judge over the veracity of such facts. That is so because even if the judge is forced to recuse himself when he does not believe the facts contained in the affidavit are true, he will still have a remedy by way of a complaint to the bar association relative to the attorney who swore to those facts.
States also need to reconsider current disclosure requirements with respect to judicial campaigning; however,
141 Id. at 565-66.
142 Id. at 566.
143 Fisher, supra note 32, at 837. Having an explanation of the denial of the recusal motion in writing would certainly assist the parties themselves in proceeding with their dispute, but in addition, “[s]uch written explanations would not only enrich the law of judicial disqualification, but, more importantly, would over time provide firmer guidance to judges who have to apply disqualification rules to novel factual settings,” thereby creating a set of precedents for judicial recusal to clarify the standards that have been accused of being vague. Id.
144 Id. at 836.
145 Id.
146 Id. at 836-37.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 disclosure is an issue that needs to be explored and revamped on both sides of the coin. That means that the public is entitled to more stringent rules regarding both better access to campaign financing and donation information, and the obligation of judges to disclose on the record “information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”
The author makes reference to the “coin” inasmuch as the judiciary will also need better access to information and more disclosure in order to properly assess their own impartiality or lack thereof.
Due in large part to the Citizens United decision, it may be difficult presently for a judge to ascertain the exact source from which his campaign funding may have come. Therefore, the judiciary must be well apprised as to these sources in order to make an appropriate decision regarding recusal. Some examples of disclosures that should be made available to judges are subjects such as “corporate affiliations, support for filing of briefs amicus curiae, etc.”
Another important area ripe for reform is the review process that is applied to denied motions for disqualification. The law is somewhat complicated on the issue presently, inasmuch as it not only varies from state to state, but also varies from court to court, depending on whether the recusal is requested at the trial court or appellate level. All states should work toward improving such processes by specifying (or clarifying, if such a procedure already purports to be in place), the procedure by which an interlocutory appeal of a refusal to recuse can be
Of course, as noted above, such an obtained quickly yet fairly.
appellate decision, either affirming or reversing the trial judge’s decision, should be accompanied by a full statement of reasons, made available in writing.
Moreover, relative to appellate judges in particular, states must work toward revision of the rules in order to eliminate from “the subject justice . . . [the] sole authority to decide such
147 Id. at 830.
148 Fisher, supra note 32, at 833.
149 Id. at 831.
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 motions.”
These issues are not as salient with regard to trial court judges, inasmuch as a refusal to recuse at that level is usually subject to some sort of appellate review; however,
“where the recusal decision is vouchsafed to the sole discretion of a state high court judge . . . due process concerns are heightened.”
Michigan has come up with a solution to this conundrum, by permitting a denial of a recusal motion by the judge in question to be reviewed by the balance of the court.
Another proposed solution is to empanel a special committee of retired members of the judiciary to review such denials.
This author does caution that any of the foregoing solutions alone will certainly not be sufficient to stem the tide of perceived injustice in the eyes of the public. Furthermore, any such revisions to state judicial codes must be accompanied by a stated standard for recusal on “the mere appearance of impropriety.”
This standard as written must also be strictly applied in order to both reassure the public and develop a body of case law that interprets the aforementioned objective standard. Such a standard, and strict application and enforcement thereof, must be used in conjunction with a modified selection process such as the above-noted appointment and retention election procedure in Arizona. The duality of this burden thrust upon states to review and revise the rules of judicial conduct is imperative in order to safeguard the public’s constitutional right to an impartial judiciary, because “the spectacle of large expenditures to support judicial election campaigns creates a spectre of partiality and impropriety that is profoundly injurious to public perception of the judiciary.”
150 Id. at 811.
151 Id.
152 Id.
153 Id.
154 Fisher, supra note 32, at 799.
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Spring 2012 Rutgers Journal of Law & Public Policy
CONCLUSION
Vol 9:3
The functions and responsibilities of the judicial system in this country are a fundamental basis underlying much of our legal system, and thereby this role as viewed by the public serves to give to the system its legitimacy, or lack thereof, in the eyes of its citizenry. However, the rules in place that govern judges stemming from the common law are inadequate to address this issue in light of the initial advent of an elected judiciary in the majority of the several States, and the more recent introduction of corporate money and special interest groups into the mix. As has happened in many other instances involving public policy issues in the past, the law has been slow to catch up with the real world. Therein lies the importance of Caperton v. Massey Coal
Co. Inc.
In Caperton, the Supreme Court actually took a giant step away from the common law rule that a judge’s recusal from a matter was only mandatory when said judge had a direct, personal, and/or pecuniary interest in the matter at hand. As discussed in detail above, while Caperton did not purport to outright overrule any prior law, it also clearly represented a transformation in the way in which attorneys, judges, and citizens will approach the subject of judicial recusal in the future. Such a transformation was achieved firstly by factually going beyond the common law to recognize that “mere” bias or prejudice can also lead to a constitutionally-mandated recusal, rather than forcing a litigant to show a “direct interest” in his particular matter. Secondly, the Court also made clear that this recusal standard is objective and to be examined in light of what a reasonable person would think constitutes a probability of bias, helping to eliminate the subjective type of soul-searching for “actual bias” done by individuals such as Justice Benjamin in
Caperton, which was previously deemed to be sufficient.
In sum, in Part I, this note looked at the history of judicial elections in United States and how they came to resemble what they do today, looked at some specific examples of disputed and arguably corrupt judicial elections and corresponding results, and went through the facts of Caperton in greater detail. Part II dealt with the varying standards for judicial recusal, both those currently in use and some proposed standards, including in relevant part: the “actual bias” standard; the “probability of bias” standard resulting from Caperton; and the “mere
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Spring 2012 Rutgers Journal of Law & Public Policy Vol 9:3 appearance of bias” standard. Finally, Part III was a brief and woefully inadequate attempt to suggest certain reforms to state judiciary codes in order for the legal system to help regain the support and trust of the American people.
While the preceding statement may sound dramatic, a reform of the ways in which judges are selected and disqualified from hearing cases is absolutely essential to the health of our nation.
155 Big money and politics have no place in an
individual’s matter that has come before a court. The very essence of an independent judiciary excludes the notion that a citizen would not be allowed redress when he has legitimate concerns over the alleged bias of the judge in his case. To summarize this lack of redress in the words of Mr. Caperton himself, “[i]t is a feeling that no citizen should ever have to endure in any court in this country.”
155 “A substantial majority of the public – often 80% or higher – believes that monetary campaign support influences judicial decisions, according to a variety of surveys conducted at both the national and state levels.” Fisher,
supra note 32, at 767 n.106.
156 Caperton, supra note 1, at 729.
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