Bridging Past, Present and Future: The impact of Rwanda’s Constitutional Reform on Transitional Justice and Genocide Prevention

• Citation: (2023) African Yearbook on International Humanitarian Law 99
• DOI: https://doi.org/10.47348/AYIH/2023/a5
• Published date: 17 June 2025
• Pages: 99-122
• Author: Ogao, R.
• Date: 17 June 2025

99

BRIDGING PAST, PRESENT

AND FUTURE: THE IMPACT OF

RWANDA’S CONSTITUTIONAL

REFORM ON TRANSITIONAL

JUSTICE AND GENOCIDE

PREVENTION

Rita Ogao *

Abstract

Following the 1994 genocide against the Tutsi, Rwanda embarked on a transitional

justice journey, with reconciliatio n, non-recurrence and m emorialisation at the

heart of the agenda. One of th e key legal changes in the subsequent years was

the promulgation of the Constit ution of the Republic of Rwanda 2003. Given

that constitution s serve as the supreme law of a nat ion, the specic language

and substance wield the potent ial to shape a nation’s trajectory b y prescribing

the principles and values that un derpin governance and e veryday life. Drawing

upon the symbolic weight of constit utional frameworks, thi s article explores

how the Constituti on of Rwanda 2003 embodies the imperative of ‘never again’,

by denouncing the ideolog y that prevailed leading up to and during t he 1994

genocide, signalling a new ideolog y conducive to reconciliation and e ntrenching

principles of transitional ju stice in its provisions. T his article seeks to illustrate

how reconci liation, non -recur rence and ins titutio nal reform —all which are

central to transitional just ice mechanisms—a re entrenched in the Constit ution

and how this plays out on both gover nance and societal levels. Using Rwanda as

a case study, this article explores the transfor mative potential of const itutions

as transitional justice an d genocide prevention to ols. Importantly, it asserts

that the more explicitly a constitut ion signals a new ideology a nd addresses a

nation’s past legacy of genocide or conict, th e higher the prospects of it serv ing

as a transformative t ransitional justice and genoci de prevention tool.

Keywor ds: Rwanda, genocide prevention, transitional justice,

constitutional reform, reconciliation, ideology

https://doi.org/10.47348/AYIH/2023/a5

* The author holds an LLB from t he University of East A nglia and is cur rently

pursuing a post-g raduate diploma at the Kenya School of Law.

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1 INTRODUCTION

April 1994 marked the start of the genocide against the Tutsi in Rwanda,

which resulted in the brutal massac re of over 1 mill ion people over the

span of 100 days.1 The perpetrators had one goal in mind: to murder

ev er y Tutsi.2 Although Tutsis were the primary targets, anyone who

refused to part icipate in the massacre of t he Tutsis was also killed.3 T he

genocide happened after a culmination of years of propaganda, ethnic

polarisation and racial prejudice.4 The media played a signica nt role

in inciting the population by perpetuating hate speech and pushing

the narrative that Tutsis were ‘foreign invaders’ and enemies who

posed great threat to the nation.5

The perpetrators were not just soldiers and armed groups but also

ordinary civilians.6 The Interahamwe, a Hutu paramilitary organisation,

and the authorities coerced citizens into answering to the ‘duty’ and

participate in the genocide, regularly checking to ensure participation

and ensuring deadly consequences awaited those in deance.7 This

level of civilian participation in the genocide complicated the task of

repairing the fabric of society post-genocide. Leaders and civil soc iety

had to grapple with difcult questions such as how to rebuild trust,

remove fear and suspicion, discourage revenge as a response and signal

new values. Recovering from such a tragedy would not be an easy feat,

given the deep trauma, shock and lingering fear and suspicion.

Transitional justice refers to ‘the full range of processes and

mechanisms associated with a s ociety’s attempts to come to terms with

a legacy of large-scale past abuses, in order to ensure accountability,

serve justice and achieve reconciliation’.8 One way that Rwanda’s post-

1 United Nations ‘Rwanda: A Brief Histor y of the Country’, available at

www.un.org/en/pr eventgenocide/rwanda/h istorical-backg round.shtml>

(accessed 5 June 2024).

2 Takele Soboka Bulto ‘The promises of new constit utional engineer ing in post-

genocide Rwanda’ (200 8) 8:1 African Hum an Rights Law Journal 187, 188.

3 Scott Straus ‘How many perpet rators were there in the Rwandan genocide? A n

estimate’ (2004) 6:1 Journal of G enocide Research 85, 88.

4 Peter Uvin ‘Prejudice, crisi s, and genocide in Rwanda’ (1997) 40:2 Af rican

Studies Revie w 91.

5 Elizabeth Baisley ‘Ge nocide and construc tions of Hutu and Tutsi in radio

propaganda’ (2014) 55:3 Race & Class 38, 50.

6 Omar Shahabudin McDoom ‘R wanda’s ordinary k illers: Interpret ing popular

participation in t he Rwandan genocide’ (20 05) Crisis States Working Pape r

Series no. 1, Working Paper no.77, available at

wp77.pdf> (accessed on 24 July 2024).

7 Alette Smeulers and Lotte Hoe x ‘Studying the microdyn amics of the Rwandan

genocide’ (2010) 50:3 The British Jour nal of Criminology 435, 443.

8 United Nations ‘Report of the Secreta ry-Genera l to the Securit y

Council’ (S/200 4/616) para 8, available at y.un.org/

record/527647?v=pdf#les> (accesse d on 17 June 2024).

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CONSTITUTIONAL REFORM ON TRANSITIONAL JUSTICE AND GENOCIDE

PREVENTION

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genocide period served as a critical juncture in African responses to

mass atrocities is that it brought locally crafted transitional justice

mechanisms to the forefront. The Gacaca Courts, for example, were

mandated to accelerate accountability and prosecutions for genocide

crimes.9 Ultimately, it was clear that the difcult past would need to

be confronted head-on. The nation moved swiftly to begin to create a

strong collective identity between Rwandans and de-centre tribe and

ethnicity from politics, governance and social affairs.

One of the key legal changes in the subsequent years was the

promulgation of the Constitution of the Republic of Rwanda 2003.10

It does not take long for one to realise that there is something unique

about the Constitution and one is immediately struck by how it

categorically makes direct reference to genocide.11 There is a conscious

intention to move forward and in this way, the imperative of ‘never

again’ is embodied within the constitution.

Given that ideology leads to genocide,12 it follows that the

concept of ideology is central to the discourse on transitional justice

and genocide prevention. Ideology can be dened as a fundamental

belief system shared by a specic group of people.13 Van Dijk notes

that ideologies are ‘a special form of social cognition shared by

social groups’.14 An ideology can, therefore, be understood as a set

of fundamental opinions, beliefs and principles held collectively

by a group or society. They have the effect of greatly shaping how

individuals interpret and navigate social interactions and they serve

as the foundational lens through which social practices are dened.15

Ideologies are often forward-looking, in that the value system is

9 Timothy Longman ‘An assessment of Rwanda’s Gacaca C ourts’ (2009) 21:3

Peace Rev iew 304, 304 and 306.

10 Constitution of the Rep ublic of Rwanda 2003 ( Revised in 2015), available

at r.org.rw/attached_pdf/Const itution%20of%2 0

the%20Republic% 20of%20Rwa nda-1608275353.pdf> (accessed on 16 May

2024).

11 See: Preamble, a rt 10, art 50, art 52 and art 139, Constitution of the Republ ic of

Rwanda 2003.

12 See for example: Faustin Ma feza ‘The role of education in combating genocide

ideology in post-genocide Rw anda’ International Jou rnal of Education and

Research (2013) 1:10; Omar Shahabud in McDoom ‘Radicalization as cau se and

consequence of violence in genoc ides and mass killings’ (202 0) 1:1 Violence: An

International Jour nal 123.

13 Teun A van Dijk ‘Ideology and dis course’ in Michae l Freeden, Lyman Tower

Sargent and Marc Stear s (eds) The Oxford Handbook of Political Ideologies (2 015)

176, 177.

14 Teun A van Dijk ‘Discours e, ideology and context’ (2001) 35:1–2 Folia Linguistica

11, 12 .

15 Ibid at 177.

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calculated to achieve a particular vision of how society should

funct ion.16

In order for the fabric of society to shift, there must be a genuine

transformation in the people’s ideas, attitudes, values and behaviour.

Therefore, it is useful to fur ther observe how such ideologies are

dismantled and replaced post-genocide, and how this contributes to

transitional justice efforts. This article argues that the Constitution

of Rwanda signals a reconciliation ideology. Drawing lessons from the

Constitution of Rwanda, this article argues that transitional justice

and genocide prevention efforts may benet from constitutional

reform. Such reform should unequivocally denounce harmful

ideologies, establish and promote a new ideology that is conducive to

reconciliation, and entrench transitional justice principles within the

provisions. This has the potential effect of making reconciliation an

irreducible minimum, which pe rmeates to all levels of governance and

society and serves as a foundational pillar in society.

This article contributes to the literature by, rst, underscoring

the centrality of social and political ideology to transitional justice

and, second, exploring the nexus between ideology, constitutional

reform and transitional justice. By characterising reconciliation as an

ideology, the article offers a new lens to the discourse as it provides a

tangible concept to understand and unpack the process of restoring

friendly relations in society. An identiable concept as such may then

be adopted by other countries. This article supports reconciliation as

an ideology, and its focus is the expression of reconciliation ideology

in constitutional frameworks. It highlights the importance of this

signalling and expression and does not seek to assess the extent to

which Rwandan society has been able to reconcile.

Constitutional reform need not be reser ved strictly for retrospective

use following genocide, violent conict or mass atrocities. Proact ive

mitigation is useful, and adopting a new ideology can encourage

reconciliation in society before a crisis unfolds. A clear and well-

established ideology has the potential to withstand and prevail during

crises, making it a valuable preventive tool.17 This article advocates

for constitutional reform that explicitly addresses and acknowledges

a nation’s past legacy of genocide or conict, and embeds principles

of transitional justice such as reconciliation, non-recurrence and

institutional reform.

As a starting point, it is necessary to highlight what makes a

constitution uniquely suited as the ideal vehicle for this signalling,

16 Anthony Downs An Economic Theory of Democracy (1957 ) 96.

17 Lee Ann Fuji ‘Transfor ming the moral landscape: The dif fusion of a genocidal

norm in Rwanda’ (200 4) 6:1 Journal of Gen ocide Research 99, 10 0.

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CONSTITUTIONAL REFORM ON TRANSITIONAL JUSTICE AND GENOCIDE

PREVENTION

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setting it apart from other doc uments. Constitutions are uniquely

positioned to ‘frame a social contract for a shared political project ’.18

Importantly, the process of drafting a constitution has the ability to

unify people, by bring ing them together to achieve a shared objective.19

Constitutions b enet from longevity. For transitiona l justice efforts

to be meaningful, they must shift prevailing ideologies and th is is a

long-term process that takes several years or even decades. A common

shortfall of transitional justice efforts is that they are sometimes

perceived as temporary measures.20 Oftentimes, transitional justice

agendas are met with great enthusiasm and strong commitment at

their inception, however this momentum drops over time.21 T his,

unfortunately, leads to a situation where the intended goals may not

be fully realised. To mitigate the loss of momentum and introduce a

long-term approach, a constitution’s longevity may be harnessed as

a strength. Constitutions generally have a lifespan of several years,

making them long-term documents that are designed to endure.

Additionally, while some except ions exist, most constitutions adopt

the principle of constitutional supremacy, meaning that they benet

from superiority. This requires that all laws, policy and actions must

be in line with the constitution, as all validity is derived from the

constitution. Indeed, Rwanda’s Constitution subscribes to this, w ith

Article 3 establishing that the constitution is the supreme law of

Rwanda, and ‘any law, decision or act contrary to this constitution is

wit hout e ffec t.’22 This is signicant, as Rwanda’s 1991 constitution did

not assert supremacy of the constitution.23

It must be stressed that the mere entrenchment of a reconciliation

ideology and transitional justice principles in a constitution does

not inherently guarantee results. Although the focus of this article

is constitutional reform, no sole mechanism on its own is effec tive,

18 United Nations ‘Report of the Worki ng Group on the Universal Periodic Rev iew

to the Human Rights C ouncil’ (A/HRC/37/6) para 34 p 9, available at

documents.un.org/doc/undoc/gen/g17/370/31/pdf/g1737031.pdf> (accessed on

6 June 2024).

19 Charlotte Fiedler ‘Unpac king the relationsh ip between politica l institutions

and conict rec urrence’ PhD di ssertation, Universit y of Essex (2019) 72,

available at ps://repository.essex.ac.uk /24456/7/Charlotte_Fied ler_PhD_

Thesis_2 019.pdf> (accessed on 28 July 2 024).

20 Clara Sandoval ‘Transitional justice and social change’ (2014) 11:20 SUR –

International Jou rnal on Human Rights 181, 186.

21 Makau Mutua ‘W hat is the future of tr ansitional justice?’ (2015) 9:1 International

Journal of Transitional Justice 1, 2 .

22 Article 3, Const itution of Rwanda 2003.

23 Adrien Katheri ne Wing and Mark Richa rd Johnson ‘The Promi se of a post-

genocide constitution hea ling Rwandan spi rit injuries’ (2002) 7 Mich igan

Journal of Race & Law 2 47, 3 02 –2 03.

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and a holistic approach is needed. For example, Klare notes the

importance of progressive judicial interpretation of a constitution in

order to give effect to the provisions; what he terms as transformative

constitutionalism.24 Indeed, such considerations are also of relevance

to a newly promulgated constitution. Ultimately, a good constit ution

on its own is less impactful if it lacks implementation and if there is

absence of political goodwill.25

The objective of this article is to explore how the Constitution of

Rwanda signals a new ideology that is conducive to reconciliation and

genocide prevention. This article is str uctured into ve parts including

this introduction, which provides a brief overv iew on the 1994 genocide

and establishes that ideology is a central consideration to transitional

justice and constitutional reform efforts . Part 2 will then conceptualise

reconciliation and assert that reconci liation can be characterised as an

ideology. Part 3 will explore constitutional development and highlight

the importance of autochthony and public participation during

constitutional reform. Part 4 offers a sociolegal perspective on how

the law inuences social change and explores the expressive function

of law theory. Part 5 will highlight how the reconciliation ideology

and transitional justice is entrenched in the Constitution of Rwanda.

Finally, Part 6 will provide recommendations and highlight three key

considerations to be made during constitutional reform, that enha nce

its effectiveness in dismantling genocidal ideology and establishing a

new ideology conducive to reconciliation

2 CONCEPTUAL FRAMEWORK: RECONCILIATION AS

AN IDEOLOGY

This article argues that the Constitution of Rwanda expresses a

reconciliation ideology and that this is expected to serve as the new

foundation of Rwandan society. Reconciliation refers to ‘restoring

friendship and harmony between t he rival sides after conict resolution,

or transforming relations of hostility and resentment to friendly and

harmoniou s ones’.26 According to Grainne and Hamber, there are

ve components to a reconciliation process, namely developing a

shared vision of an interdependent and fair societ y; acknowledging

and dealing with the past; building positive relationships; signicant

24 Karl E Klare ‘L egal culture a nd transformative cons titutionalism’ (1998) 14:1

South African Jour nal on Human Rights 146, 152 and 156.

25 Bulto op cit note 2 at 203.

26 Daniel Bar-Tal and Gemma H Ben nink ‘The natu re of reconciliation as a n

outcome and as a process’ in Yaacov Bar-Sima n-Tov From Conict Resolution to

Reconciliation (2004) 1, 4.

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cultural and attitudinal change; and substantial social, economic and

political change.27

Following the 1994 genocide against the Tutsi, and particularly

in light of its participatory nature, suspicion and mistrust are almost

inevitable. Reconciliatory efforts allow for such suspicion and mist rust

to be addressed, which is important for peace to prevail. 28 The e nd goal

of the reconciliation process is to restore cordial relations and ensure

that individuals can peacef ully coexist.29 Given that ideology is a set

of beliefs or opinions held by a group, it is possible for reconciliation

to be an ideology.

Zmigrod notes two character istics of ideologies, namely doctrinal

and relational.30 This may serve as the framework to ascertain

whether reconciliation as espoused in the Constitution of Rwanda

can be characterised as an ideology. Firstly, the doctrinal requirement

necessitates the existence of ‘a set of descriptive and prescriptive attitudes

about social relations and norms’.31 Reconciliation encompasses both

prescriptive and descriptive attitudes toward so cial relations, as its core

purpose is to restore harmony and restore friendly relations among

members of society. Thus, it follows that reconciliation prescribes that

members of society should behave in a manner t hat is conducive to

unity and peaceful coexistence.

Second, the relational component recognises that some may act

in deance towards the ideology – what Zmigrod refers to as ‘out-

gr ou ps’. 32 Consequently, this component suggests that an ideology

is dened by its tendency to favour those who conform to it, while

expressing disapproval and distrust towards those who act in

deance.33 Reconciliation is normative by nature in that it establishes

a code of conduct. Behaviour and actions conducive to facilitating

restoration of friendly relations are considered good and desirable,

and those that lead to division, discord or hostility are considered

impermissible. Anyone who acts in contravention would, therefore,

be met with distrust and suspicion. Indeed, individual actions and

27 Grainne Kelly and Br andon Hamber ‘A working denit ion of reconciliation’

(200 4) Democratic Dialogue 3– 4. Working Paper available at < https://pure.

ulster.ac.uk/ws/porta lles/portal /76832671/Paper_A_Working_ Denition_of _

Reconciliation_ HAMBER_K ELLY_2004.pdf> (accessed on 26 Ju ne 2024).

28 Fiedler op cit note 19 at 68.

29 Bar-Tal and Bennink op cit note 26.

30 Leor Zmigrod ‘A psychology of ide ology: Unpacking the psyc hological struct ure

of ideological thin king’ (2022) 17:4 Perspectives on Psychological Sc ience 1072,

1075.

31 Ibid.

32 Ibid.

33 Ibid.

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inactions are largely inuenced by ‘what others do, and what others

think we should do’.34

In light of the above, reconciliation meets the threshold to be

characterised as an ideology. It is the argument of this article that the

Constitution of Rwanda communicates a reconciliation ideology. It

denounces the genocidal ideology in its entirety and replaces it with

a reconciliatory ideology. Part 5 of this article will later highlight

specic provisions in the Constitution of Rwanda that communicate

and signal the new ideology of reconciliation.

In order for the fabric of society to be transformed following

genocide and other mass atrocities, a shift in ideology and a change in

behaviour are of utmost importance.35 T he nation must part ways f rom

and denounce the ‘ideology that supported the old system’.36 It must

be stressed that the mere promulgation of a new constitution after a

past legacy of atrocities may not necessarily bring about fundamental

change in society; it is only when thi s is accompanied with a departure

from the old ideology and an adoption of new ideology, that such a

transformation is efcacious and prevention is more likely.37

Without an ideological shift, societies may adopt new principles

yet remain fundamenta lly unchanged, thereby rendering such changes

mere formalities, rather than fostering genuine transformation and

empowering citizens to actively prevent atrocities. T here is also a

possibility that the newly laid principles and values may remain

associated strictly to the spec ic past atrocity instead of being perceived

as the new status quo. A psychological transformation must take place,

where people change their way of think ing.38 When transitional justice

mechanisms are accompanied by an ideological shift, the people’s

deep-rooted values, principles and mindset towards approaching

conict resolution and social relations are also transformed, meaning

the prospects of genuine, sustainable, long-term peace are forti ed.

3 CONSTI TUTIONAL DEVELOPMENT: INCORPOR ATING

AUTOCHTHONY AND PUBLIC PARTICIPATION

A reconciliation ideology is best adopted and received when a

constitution is autochthonous. This is intertwined with public

34 Gerry Mack ie et al. ‘What are so cial norms? How are they meas ured’ Uni-

versity of California at San Diego -UNICEF Working Paper 3 (2014), av aila ble

at //cnxus.org/wp-content/uploads/2022/04/42009203020Whole-

20What20a re20Social20Norm s.pdf> (accessed on 22 July 2024).

35 Sandoval op cit note 20 at 183.

36 Ibid at 184.

37 Ibid.

38 Bar-Tal and Bennink op cit note 26 at 17–18.

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participation in the drafting process; the two go hand-in-hand

as participation of the people usually implies the constitution is

autochthonous. B efore the 2003 Constitution, Rwanda had four

previous constitutions, namely the Constitutions of 1961, 1962, 1978

and 1991, none of which we re autochthonous.39 T he 2003 Constit ution,

therefore, marks a notable change. An autochthonous constitution is

one that is ‘home grown or rooted in native soil’.40 In other words,

it is made by the citizens, themselves, as opposed to being imposed

by a foreign, often colonial power.41 Ibiam notes how it is possible

for a constitution that starts with ‘we the people’ to not actually be

written by the people themselves and to have had little to no input

from the people themselves.42 Participation in the constitutional

drafting process must t herefore be meaningful and not just an exercise

of formality.

Public participation is able to contribute positively to the

reconciliation process.43 This art icle recommends that a new

constitution—whether adopted in response to mass atrocities or as a

preventive measure—should be intentionally tailored, with the end

product being a document that reects the people, and their unique

history, experiences and aspirations for the country. The constitution

should entrench transitional justice in a way that empowers

survivors.44 Indeed, if people are able to feel a personal attachment to

the constitution and claim it as their own, the constitution is more

likely to have an effect on social behaviour.45 Moreover, people feel

39 ConstitutionNet ‘C onstitutional Histor y of Rwanda’; available at

constitutionnet.org/country/rwanda#:~:text=In%201991%2C%20a%20

constitutional%20revision,and%20the%20rule%20of%2 0law.> (accessed on

24 July 2024).

40 Peter Oliver ‘Autochthonous constitutions’ a working p aper cited in R Grote,

F Lachenmann a nd R Wolfrum (eds) Max Planck Encyclopedia of Com parative

Constitutional La w (2017).

41 Joseph Ekpe Edet et a l. ‘Shaping public policy t hrough constitutiona lism:

Nigeria’s constitutional deve lopment and the quest for an autochthonous

constitution’ (2023) 20:8 Migration Letters 118 0, 1181.

42 Emmanuel Ibia m Amah ‘Nigeria – The search for autocht honous constitution’

(2017) 8 Beijing Law Review 141 , 142.

43 Bulto op cit note 2 at 204.

44 Hollie Nyseth Brehm a nd Shannon Golden ‘Centeri ng survivors in loc al

transitional just ice’ (2017) 13:1 Annual Review of Law and Social Sc ience 101,

106.

45 J Esteban Montes and Tomás Vial ‘The role of const itution-bu ilding processes

in democratiz ation’ (2005) Internatio nal IDEA Democrac y-building & Conict

Management 27.

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more obligated to follow laws that they deem to be just and fair and

that are tailored to the shared beliefs of a community.46

Meaningfu l and genuine dialogue that results in a just compromise

being reached requires time and, as such, the process of deliberation

should not be r ushed.47 Involving the people and genuinely reecting

their views can help create a sense of tr ust between the state and

the citizens, which may contribute to conict prevention.48 This

relationship can only be established if the constitution is home-grown

and the drafting was participatory. It follows that no such relationship

can be established if the constitution is transplanted or if the state

unilaterally does the dra fting and imposes it onto the people. Moreover,

inputs should be representative and should not just be sought from

those deemed to be experts.49

The participatory nature of Rwanda’s constitutional reform

process is contested. Some argue that the Legal and Constitutional

Commission’s interaction with the public was more to inform the

public than to receive feedback and genuinely consider it.50 Others

have also accused the Rwandan Patr iotic Front (RPF) of exert ing heavy

control over the process, noting the possible bias from the commissions

being mostly led by RPF members.51 However, on the opposite end of

the spectrum, Montes and Vial make a profound observation that52

the constitution is a product of t he people … while attending a gra ss

root meeting in good governa nce, participants were a sked to say one

thing which they a re proud to have contributed to in Rwanda. Many

of them said it was the Constit ution. People were pleased because they

were consulted in the process of d rafting the constitution … it was the

rst time people from K igali had come to ask the opinion of people on

how the country should be governed … .

46 Janice Nadler ‘Expr essive law, socia l norms, and social groups’ (2017) 42:1 Law

& Social Inquiry 6 0, 63.

47 Fiedler op cit note 19 at 73.

48 Ibid at 72.

49 United Nations ‘Report of the Spe cial Rapporteu r and the Special Adv iser to

the Secretar y-General to t he Human Rights Cou ncil’(A/HRC/37/65) para 13

p 9, available at

g1817058.pdf> (accessed on 8 July 2024).

50 Angela M Banks ‘ Expanding pa rticipation in constitution makin g: challenges

and opportun ities’ (2007) 49:4 William & Mary Law Review 104 3, 1068.

51 Montes and Vial op cit note 45 at 20.

52 Ibid at 27.

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The extent to which Rwanda’s constitutional reform process

was participatory has already been debated in existing literature.53

The takeaway point is that the process must ensure participation is

meaningful a nd should avoid being dominated by a single party, in

order to ensure objectivity, strong representation, and to gain the tru st

of the public.

As will be reiterated throughout this a rticle, ideological change is

paramount to any transformation, thus participation is less meaningful

if it is not coupled with an ideological change. An example in point is

South Africa, which has been applauded for its participatory efforts in

the constitutional draft ing process, which involved campaigns run by

various means such as television, radio, posters, leaets, telephone and

face-to-face workshops. 54 However, despite the fact that the end result

of participation was a progressive constitution, it has been arg ued that

there still lacks a shift in ideology in society.55 As a result, although

the constitution contains provisions that seek to tackle apar theid,

apartheid ideology still e xists. 56 This underscores that constitutional

reform and participatory drafting must be coupled with old ideology

being eradicated.57

4 A SOCIOLEGAL PERSPECTIVE ON HOW THE LAW

INFLUENCES SOCIAL CHANGE

4.1 Literature review

Research shows the general positive effect of constitutional reform

following conict. Fiedler, for example, concludes that ‘post-conict

constitution-making’ contributes to peace and recommends that

the process should not be rushed as longer processes tend to show

stronger prospects, owing to sufcient time to deliberate being

given.58 Moreover, the literature has extensively examined the role of

constitutions in democracy, governance and capacity building after

genocide – all of which are essential components of transitional just ice.

For example, Du Plessis, Jansen and Siebrits argue that democrati sation

is able to reduce the likelihood of civil wars in Africa, noting the vital

53 See for example Bank s op cit note 50; Prisci lla Yachat Ankut The Role of

Constitution- building Processes in Demo cratization (2005) 26 , available at

nda.pdf> (accessed on

12 August 2024).

54 A/HRC/37/65 op cit note 49 at para 34 p 9.

55 Sandoval op cit note 20 at 184.

56 Ibid.

57 Ibid.

58 Fiedler op cit note 19.

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role of ‘self-enforci ng constitutions’.59 Additionally, Eisenstadt et al.

argue that public participation during constitution-making positively

impacts democratic values.60

There have been a number of inquiries into how Rwanda’s

Constitution seeks to address the causes of genocide and mitigate

future atrocities. Bulto, for example, highlights some of the root

causes of the 1994 genocide, including socioeconomic and political

factors, as well as the media, and examines the extent to which the

Constitution addresses each of these root causes.61 F urthermore, An kut

notes how the constitution seeks to mitigate conict, for example, by

the establishment of the National Human Rights Commission and the

National Unity and Reconciliation Com mission.62

However, the nexus between constitutional reform, reconciliation

ideology and transitional justice is under explored. Whereas

the discourse in the literature has focused on how constitutions

contribute to peace and stability, this article seeks to explore how

unequivocal ly communicating an ideolog y conducive to reconciliat ion

in a constitution contributes to transitional justice and genocide

prevention. More light must be shed on the role of constitutions in

signalling ideology post-genocide. This is the gap this article seeks to

ll. Using the example of the Constitution of Rwanda, this article will

explore this crucial signalling that embodies the imperative of ‘never

again’ and how this contributes to the transitional justice process. The

theory that this ar ticle draws on is the expressive function of law, which

serves as the lens through which the analysis on the nexus between

constitutional reform, reconciliation ideology, and transitional justice

is premised upon.

4.2 Expressive function of law

The expressive function of law is a theoretical perspective that can be

understood as ‘the ability of law, beyond establishing and enforcing

rules, to express those rules as a social meaning that can reinforce or

change the norms of a community’.63 The law is seen to be a means

through which social norms a nd behavioural standards are congured

59 Sophia du Plessis, Ada Janse n and Krige Siebrits ‘D emocratisation in A frica:

The role of self-enforc ing constitutional r ules’ (2015) 15:1 African Jour nal on

Conict Resolution 9–31 .

60 Todd A Eisenstad, A Carl LeVan and Togh Maboudi ‘W hen talk tru mps text:

The democratiz ing effects of de liberation during c onstitution-mak ing, 1974–

2011’ (2015) 109:3 American Political Science Rev iew 592–612.

61 Bulto op cit note 2 at 189.

62 Ankut op cit note 53.

63 Thomas A McGinn ‘T he expressive func tion of law and the lex imperfe cta’

(2015) 11 Roman Legal Tradition 1, 2.

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and shif ted.64 In addition, the expressive function of law seeks to serve

as a benchmark that guides the shaping of social norms.65 Thus, t he

law is regarded as symbolic, as the precise wording of the text may

have a signicant impact on shaping attitudes and behaviours.66 The

expressive function of constitutions means t hat they communicate a

forward-looking vision, and values that soc iety should strive towards.67

Rwanda’s Constitution has, indeed, contributed to this congu ration

of social attitudes in a number of ways. For exa mple, Brown explores

Rwanda’s successful reshaping of gender norms and notes how the

constitution ‘formalised Rwanda’s commitment’ to gender inclusive

policies.68 On the same topic of empowerment, Kantengwa makes a

comparison of women representation in government before and after

the promulgation of the Constitution, with her ndings revealing a

stark and positive improvement.69

The theory of the expressive function of law is relevant to this

article as it forms a basis for the argument that the constitution is able

to perform the crucia l function of signalling the denouncement of the

genocidal ideology and introduction of a reconciliation ideology. The

theory underscores that the law cannot be detached from its social

context and supports the idea that the law has the power to transform

and recongure social behaviour and attitudes.

The next part will highlight how reconciliation ideology and

transitional justice is entrenched into the Constitution of Rwanda.

As Fuji notes, ‘the clearer the prescription of a given norm, the more

likely people will follow that norm and not others’.70 This next part

will, therefore, examine the prescription of such norms.

5 ENTRENCHMENT OF RECONCILIATION IDEOLOGY

AND TRA NSITIONAL JUSTICE PRINCIPLES IN

RWANDA’S CONSTITU TION

Having conceptualised the notion of ideology and its relevance to

transitional justice, this par t will now explore how the reconciliation

ideology is expressed in the Constit ution of Rwanda. An ideology gains

64 Cass R Sunstein ‘On the e xpressive funct ion of law’ (1996) 144:5 University of

Pennsylvania Law Revie w 2021, 2043.

65 Ibid at 2051.

66 Nadler op cit note 46 at 63.

67 A/HRC/37/65 op cit note 49 at para 15 p 5.

68 Sara E Brown ‘Reshaping gende r norms in post-genocide Rwa nda’ (2016) 10:2

Genocide Studies International 230, 242.

69 M Juliana Kanteng wa ‘The will to p olitical power: Rwand an women in

leadership’ (2010) 41:5 Institute of Development St udies Bulletin 72, 78.

70 Fuji op cit note 17 at 100.

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stronger relevance in society if it is able to address lived realities and

social conditions.71 Drawing on the sy mbolic weight of constitutional

frameworks, this part explores how the Constitution of Rwanda

(2003) entrenches reconciliation ideology alongside the closely

related principles of harmony, national unity, peace and tolerance as

foundational values of Rwandan society. It presents reconciliation as

a foundational value, through which all sociopolitical spheres are to

be navigated. The state itself, state organs, political organisations and

all citizens of Rwanda are bound by the national values that allude to

reconciliation and are conducive to facilitating a harmonious society.

Conguring collective standards that govern social relations is the

starting point in reconciliation.72

The Constitution of Rwanda begins w ith ‘We, the people of

Rwanda’. This proclamation is signicant and aids in the creation

of a collective Rwandan identity.73 It is noteworthy that Rwanda’s

Constitution of 1991, which immediately preceded this, did not have

this proclamation, thus making this a welcome addition.74 It has been

argued that there is a connection between a weak collective national

identity and the occurrence of civ il wars. 75 Com municating oneness

and a strong sense of unity and national identity, therefore, helps build

an environment conducive to reconciliation, which the proclamation

of ‘We, the people’ may help communicate.

The Constitution is categorical about the country’s past legacy

of genocide. Right from the preamble, there is an explicit and

direct reference to the genocide and victims, and an unequivocal

commitment to reconciliation, genocide prevention and transitional

justice efforts. For example, the preamble states: ‘Conscious of the

genocide committed against Tutsi that decimated more than a million

sons and daughters of Rwanda, and conscious of the tragic history of

our country … .’76 Such direct reference to the genocide and victims is,

in itself, a form of acknowledgement, which is important as transitional

justice seeks to provide recognition to victims.

The preamble goes on to list fundamental pri nciples that the state is

committed to upholding, including ‘national unity and reconci liation,

71 Josué Antonio Nescolarde -Selva, José-Lu is Usó-Doménech and Hugh Ga sh

‘Structu re and superstr uctures in complex s ocial systems’ (2017) 5:28 Syste ms

1, 8; available at (accessed on

19 August 2024).

72 Catherine Honeyma n et al. ‘Establish ing collective norm s: Potentials for

participatory jus tice in Rwanda’ (2004) 10:1 Peace and Conict 1, 9.

73 Bulto op cit note 2 at 195.

74 See Constit ution for the Republic of Rwanda 1991, available at p://www.

commonlii.org/r w/legis/const/1991/1.html> (accessed on 24 Aug ust 2024).

75 Du Plessis, Jansen a nd Siebrits op cit note 59 at 10.

76 Paragraph 3 of the Pr eamble, Constitution of the Republic of Rwanda 20 03.

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good governance, development, social justice, tolerance and resolution

of problems through dialogue’.77 Importantly, the preamble lists

reconciliation as one of the ‘pillars of development’.78 Furt her, it

declares commitment to ‘preventing and punishing the crime of

genocide, ghting genocide negationism and revisionism, eradicating

genocide ideology and all its manifestations, divisionism and

discrimi nation based on ethnicity, region or any other ground’.79 These

provisions are reiterated in the fundamental principles outlined under

Article 10 of the Constitution.80 This reinforces the reconciliation

ideology by establishing the principles analogous to harmony and

peaceful coexistence as the moral code. The clarity in the prescription

of these values also has the effect of signalling the denouncement of

genocidal ideology and its complete replacement with reconciliation

ideology.

Moreover, Article 46 states that ‘every Rwandan has the duty to

respect and consider his or her fellow beings without discrimination,

and to maintain relations aimed at safeg uarding, promoting and

reinforcing mutual respec t, solidarity and tolerance’.81 This particular

provision is noteworthy because it imposes a positive duty on citizens

and makes it clear that the reconciliation ideology is also expected

to permeate the social sphere. The importance of making citizens co-

agents of the transitional justice process will b e elaborated on part 6 of

this article. A sim ilar positive duty is seen in Article 52, which provides

that ‘the state and everyone has the duty to preserve and safeguard

memorial sites of the genocide against Tutsi’.82

The Constitution of Rwanda contains provisions pertaining to

transitional justice that have the potential to serve as a springboard

for the creation of further policies down t he line. For example,

Article 139 establishes the National Unity and Reconciliation

Commission and the National Commission for the Fight against

Genocide.83 This increases the prospec ts of the reconciliation ideology

materialising. Reconciliation goes from being a st rong value to a reality

with identiable policies and programmes ai med at creating a strong

collective Rwandan identity. Thus, the constitution not only lays down

the reconciliation ideology but it also provides avenues through which

it may be actualised.

77 Paragraph 6 of the Prea mble, Constitution of the Republic of Rwanda 20 03.

78 Paragraph 4 of the Prea mble, Constitution of the Republic of Rwanda 20 03.

79 Paragraph 7 of the Prea mble, Constitution of the Republic of Rwanda 20 03.

80 Article 10, Constitut ion of the Republic of Rwanda 2003.

81 Article 46, C onstitution of the Republic of Rwanda 2003.

82 Article 52, Const itution of the Republic of Rwanda 2003.

83 Article 139(b) and (c), and art 10, Constitut ion of the Republic of Rwanda

2003.

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One way that a harmful ideology may be d iffused is by expressly

communicating disapproval and zero tolerance towards it. The

Constitution of Rwanda makes two references to the term ‘genocide

ideology’ and, in both insta nces, it is accompanied by an expression of

disproval. The preamble states a commitment to ‘eradicating genocide

ideology ’ and Artic le 10(1) establishes ‘eradic ation of genocide ide ology

and all its manifestations’ as a fundamental principle. This has the

effect of signalling that the genocidal ideology has been denounced

in its entirety. One of the strengths of the Constitution of Rwanda is

that it not only denounces the old ideology but it also replaces it with

a reconciliation ideology, so that there is no ambiguity on the way

forward.

Political values in line with the reconciliation ideology and the

norm of peaceful coexistence are also espoused in the constitution.

Article 56 states that ‘political organisations must always reec t

the unit y of Rwanda ns’.84 On a similar note, Article 57 prohibits

political parties from ‘basing themselves on race, ethnic group, tribe,

lineage, region, sex, religion or any other division which may lead

to discrimination’.85 This detachment of tribe and ethnicity from

political parties is sign icant as one of the major contributors to the

1994 genocide was the political endorsement of tribal, divisive and

genocidal hate speech. A notable example of genocidal propaganda

being pushed by political gures is the ‘Hutu ten commandments’,

which incited hatred against Tutsis.86 In the years leading up to the

genocide, politics and tribe appeared to be inseparable, with the Hutu

ruling par ty using Tutsis as a scapegoat amidst socioeconomic hardship

and scarcity of resources.87 Once again, the reconciliation ideology is

expressed in the 2003 Constitution, by reiterating that there is no

sphere in society that is exempt from conformity to reconciliation.

Laying down of the reconciliation ideology as pa rt of transitional

justice extends beyond Articles that directly make reference to

genocide. An example is Article 141, which establishes the Abunzi

(meaning ‘those who reconcile’) Committees that are responsible for

‘conciliating parties in conict with the aim of consolidating national

unity and peaceful co-existence among Rwanda ns’.88 Although no

direct reference is made to genocide, this is important in establishing

reconciliation as a value because it allows citize ns to become accustomed

to amicable resolution of disputes through dialogue as an a lternative to

84 Article 56, Const itution of the Republic of Rwanda 2003.

85 Article 57, Constitution of the Republic of Rwa nda 2003.

86 Brian Mart in ‘Managing out rage over genocide: case study Rw anda’ (2009)

21:3 Global Change, Peace & Secur ity 275, 283 and 286.

87 Bulto op cit note 2 at 190 and 193.

88 Article 141, Constitution of the Republic of Rwa nda 2003.

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hostile confrontation. Transitional justice should discourage revenge

as a response, as this continues cycles of violence.89 Mutisi observes

that there is a link between post-genocide reconciliatory efforts and

the Abunzi Commit tees, noting that they a re in, fact, a direct response

to the genocide.90

This is relevant to the discourse because, as Walker notes, cycles

of violence are sustained if there is a ‘socially supported idea that

violence is both a necessary and justied response to a prior wrong,

and sometimes even to a supposedly imminent one’.91 Thus, the

reconciliation ideology as a whole, and measures such as the Abunz i

Committees, rewire how people think about conict resolution

and reiterate that dialogue should be the initial, default response to

addressing grievances. Such measures recognise that the law is able to

operate with impact, without threats.92 Normalisi ng amicable reactions

to conict is one way that this can happen, as it morphs reconci liation

into a way of life.

Addressing conict resolution from a community level is a useful

strategy for genocide prevention.93 As McDoom notes, there was a

‘neighbourhood effect’ and ‘household effect’ in the participation of

genocidal acts during t he 1994 genocide.94 If a member of a community

engaged in violent acts, it was highly likely for other neighbours to

also participate; thus, there was an element of social inuence to

participation.95 It is, therefore, useful for transitional justice policy to

mitigate conict on a community level.

Ideology is important to the discussion of transitional justice

as deep, meaningful and long-term societal change post-genocide

requires a shift in ideology that is accompanied by new aspirations

for soc ie t y.96 Ideologies inuence all spheres of society beyond just

the legal and political spheres, extending to education and healthcare,

89 Mutua op cit note 21 at 2.

90 Martha Mutisi ‘L ocal conict re solution in Rwanda: the cas e of abunzi

mediators’ (2012) in Martha Muti si, Kwesi Sansculotte- Greenidge and ACCORD

Integrating Traditional and Modern Conic t Resolution: Experie nces from Selected

Cases in Eastern and t he Horn of Africa. A frican Dia logue Monograph Series

No 2/2012, 41–47) 52, available at ps://www.les.ethz.ch/isn /146648/

ACCORD-monograph-2012 -2.pdf> (accessed on 10 August 2024).

91 Margaret Urban Walker ‘The cycle of violence’ (2006) 5:1 Journal of Human

Rights 81, 104.

92 Nadler op cit note 46 at 60.

93 Omar Shahabudi n McDoom ‘Who ki lled in Rwanda’s genocide? Micro -space,

social inue nce and individual pa rticipation in interg roup violence’ (2013)

50:4 Journal of Peace Research 453.

94 Ibid.

95 Ibid.

96 Nescolarde-Se lva, Usó-Doménech and Gash op cit note 71 at 6.

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among others.97 A newly established ideology, therefore, has a high

likelihood of permeating all facets of life and having a transformative

effect.

This part of the ar ticle has demonstrated how reconciliation

ideology takes expression in the Constitution of Rwanda and how

the genocidal ideology is unequivocally denounced. T he highlighted

constitutional provisions make it evident that the reconciliation

ideology permeates all spheres of Rwandan society, thus making

reconciliation an irreducible minimum. This act of signalling has the

potential to congure socia l norms and inuence behaviour, as well as

serve as a transitional justice and genocide prevention tool. The next

part of this article will provide recommendations and highlight key

considerations that may enhance the process of constitutional reform

and signalling of a new ideology.

6 RECOM MENDATIONS

This article has probe d deeper into the process of constitutional reform

and made the argument that three key aspects should be integrated

into constitutions in order to increase the prospects of prevention

and societal transformation. These are: expressing a reconciliation

ideology; denouncing the genocidal ideology; and incorporating

transitional justice principles such as reconciliation, guarantees of

non-recurrence, and institut ional refor m.

Transitional justice is often perceived as a responsive measure to

deal with the aftermath of mass atrocities; however, its capacity to

prevent future violations should also be harnessed.98 Guarantees of

non-recurrence are, by denition, preventive and forward looking.99

Thus, given that transitional justice should be prospec tive and not just

retrospective, this preventive potential ca n be used to address historical

tensions before they manifest to the scale of genocide or violent

conict. It must, therefore, be stressed that these recommendations

should not only be thought of in terms of response but also in terms

of mitigation. This part will again draw on the Rwanda case study to

highlight three key charac teristics that increase the ef cacy of this

exercise of diffusing the genocidal ideology and establishing the new

reconcil iation ideolog y.

97 Ibid.

98 A/HRC/37/65 op cit note 49 at para 8 p 4.

99 Ibid at para 15 p 5.

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6.1 Autochthonous and public participation

As discussed prev iously in part 3 of this article, a reconcil iation ideology

is best adopted and accepted when a constitution is autochthonous,

which simply means home-grown.100 The constitution should be

uniquely tailored and the citizens should be given the opportunity

to contribute to the constitutional reform process, by voicing their

experiences, grievances and aspirations. Public participation can

contribute positively to reconciliation ef forts.101 It is recommended

that participation should entail meaningful dialogue and feedback,

and it should not just be an exercise of formality. It is important to

ensure that participation is representative of different demographics,

and not limited to those deemed to be experts.102 In order to yield

meaningful results, sufcient time should be allowed for this dra fting

and consultative pro cess.103 It should resonate with the people and they

should be able to claim it as their own, as this is more likely to lead to

higher levels of conformity and transformation of social behaviour.104

6.2 Making the citizens co-agents of the transitional

justice process by imposing positive constit utional

duties

Rwanda’s constitution does not just assign transitional justice as a

state duty, it also imposes a legal obligation on all citizens to be a part

and parcel of the transitional justice process. Ever y citizen is given a

legal mandate to maintain and cultivate an envi ronment conducive

to peace. This is what this art icle refers to as making the people ‘co-

agents’ of the transitional justice process. Whereas the previous point

on public participation focuses on ensuring that the constitutional

reform process is consultative and allows citizens to contribute their

input, the notion of co-agents emphasises imposing positive duties

on citizens, legally obligating them to engage in reconciliation and

transitional justice efforts. Making the people co-agents is a positive

feature, as it personalises the process a nd provides a sense of ownership

and responsibility to the reconciliation and tr ansitional justice journey.

Article 46, for example, provides that ‘every Rwandan has

the duty to respect and consider his or her fellow beings without

discrimination, and to maintain relations aimed at safeguarding,

promoting and reinforcing mutual respe ct, solidarity and tolerance’.105

100 Peter Oliver op cit note 40.

101 Bulto op cit note 2 at 204.

102 A/HRC/37/65 op cit note 49 at para 13 p 9.

103 Fiedler op cit note 19 at 73.

104 Montes and Vial op cit note 45 at 27.

105 Article 46 , Constitution of the Republic of Rwanda 20 03.

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This is of particular importance in regard to social norms, which are

the unwritten rules that dene how people behave and how they

perceive others to expect them to behave.106 Thus, in light of the

legally binding duty imposed on all c itizens, there is an expectation

that all members of society will behave in a manner conducive to

reconciliation and, as such, they possess an awareness t hat others

believe they ought to do the same. People’s behaviour and responses

to law are socially inuenced, with people observing what others do

and considering what others will approve of.107 Meaningful societal

change is most likely to happen when the people, and not just the

state, are given a positive duty to participate in the transformation

process. Crucially, this involves empowering them by maki ng them

co-agents and not just observers in the periphery.

In describing constitutions as a form of pact between the state

and the citizens, Weingast notes that one characteristic for them to

be successful is that ‘each party agrees to change its behaviour in

exchange for the others simultaneously doing so’.108 The ideal outcome

is for there to be a synergy bet ween the state and the citizens, with

the entire nation pulling its weight, while still ensuring the process

is victim-centred. The imposition of positive duties, in line with

transitional justice, is not conned to the people alone but also to the

state. For example, Article 50 creates a positive duty on the state to

‘undertake special act ions aimed at the welfare of the needy survivors

of the genocide against Tutsi’.109 This is yet another example of this

simultaneous exchange and goodwill between all part ies, as opposed

to the transitional justice process being one sided.

Although Rwanda is a good case study of empowering t he people

to be co-agents, there is still room for improvement. For example, it has

been suggested that more can still be done to heighten the awareness

of citizens and all actors on the role they are to play in the country’s

reconciliation policy.110 Nevertheless, a lesson taken from Rwanda is

106 Suruchi S ood, Sarah Steven s, Carmen Cronin a nd Michelle Gordon ‘Soc ial

norms desk review. The act f ramework package: Measur ing social norms

around female genita l mutilation’ (2020), available at s://www.unicef.

org/media/100791/le/JP%202 020%20ACT%20social%20norms%2 0desk%20

review.pdf> (accessed on 2 June 202 4).

107 Nadler op cit note 46 at 66– 67.

108 Barr y R Weingast ‘The constitut ional dilemma of econom ic liberty’ (20 05)

19:3 Journal of Economic Perspec tives 89, 98 .

109 Article 50, C onstitution of the Republic of Rwanda 2003 .

110 International A lert ‘Unity and re conciliation in Rwand a: A look at policy

implications vis- à-vis social cohesion’ (2018) 4, available at s://www.

international-a lert.org/publications/unity-and-re conciliation-rwanda/>

(accessed on 11 July 2024).

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that countries should make it clear to their citizens that transitional

justice is a col lective projec t.

6.3 Explicitly address the past legacy of violence and the

way forward

An attribute that is immediately striking about the Constitution of

Rwanda is how directly, explicitly and unequivocally it addresses the

country’s past legacy of genocide. This article recommends that the

more unequivocal the provisions are, the stronger the prospects of t hem

contributing to building the newly congured ideology, which then

contributes positively to transitional justice and genocide prevention.

A notable example is the preamble, which states: ‘Conscious of the

genocide committed against Tutsi that decimated more than a million

sons and daughters of Rwanda, and conscious of the tragic history of

our country.’111 This express cognisance is signicant because it allows

the constitution to serve as a transitional justice tool, as it bridges the

past and present. It is also a stark reminder of the need to guarantee

non-recurrence and for the need to e mbrace tra nsformation.

Not only should explicit reference be made to the past legacy but the

new ideology should also be communicated in a direct manner. This

is because people are more likely to follow a norm that is prescribed

with clarity and prec ision.112 Thus, there should be no ambiguity as to

what the overarching ideology is, and it should be able to be detected

immediately. The Constitution of Rwanda serves as an exa mple of how

upon rst glance, one is able to immediately pick up on the underlying

theme and ideology of reconciliation.

Namibia may serve as an example of why it is useful to not only

address the country’s past legacy but to go further to establish a

new ideology. The Namibian Constitution expressly recognises the

country’s past legacy of apartheid and colonialism.113 Ar ticle 23 makes

a further acknowledgement and denouncement, stating that114

the practice of racial d iscrimin ation and the practice and ideology

of apartheid from which t he majority of the people of Namibia

have suffered for so long shall be pr ohibited … for the purposes of

expressing the rev ulsion of the Namibian people at such practices.

Moreover, parliament is given the responsibility of adopting af rmative

action policies to facilitate redress for those who have historically bee n

111 Paragraph 3 of the Pr eamble, Constitution of the Republic of Rwanda 20 03.

112 Fuji op cit note 17 at 100.

113 See para 4 of the P reamble, Namibian Constitution of 1990 (as amended ).

114 Article 2 3(1), Namibian Constit ution of 1990 (as amended).

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‘disadvantaged by past discriminatory laws or pract ices’.115 Never theless,

while it is commendable that the apartheid ideology is denounced, it

appears that no new ideology has been clearly articulated. Afrmative

action is not dened as an ideology designed to establish a new status

quo or reshape societal values; rather, it is a policy aimed at addressing

and correcting past discrimination.116 A recent study suggests that

underlying racial inequalities in Namibia still linger and that these

increase the risk of atrocity c rimes.117 A complete dismantling of the

apartheid system has yet to occur and remnants of racial inequality

and socioeconomic oppression still persist.118 The process of societal

transformation is nuanced, and there are undoubtedly numerous

systemic factors at play that sustain oppression and inequalities.

Nevertheless, the impact of the constitution’s denouncement of

apartheid ideology would have perhaps been stronger if it was coupled

with the expression of a new ideology that is conducive to equality

and desegregation.

Although directness is encouraged, an important caveat is that

drafters of the constitution must be careful to avoid leaning towards

‘one version of the truth’ to the exclusion of other perspectives

and experiences.119 While constitutional reform can be a powerful

transitional justice tool, it may lead to unintended ethnic polarisation

if not carried out carefully.120 Prospects of long term peace may be

weakened if any group in society feels they have been overlooked

or that their plight has not been acknowledged.121 Thus, even while

explicitly and unequivocally ack nowledging, it must be deemed to be

fair by the population and they must have condence in its ability to

deliver justice.

Countries that have legacies of genocide, cycles of violence, war or

mass atrocities can draw lessons from t he Constitution of Rwanda. The

value found in the act of coming together to address past atrocities,

115 Article 2 3(2), Namibian Cons titution of 1990 (as amended).

116 Catherine Ka imenyi, Emelda K inya and SM Chege ‘An analysis of af rmative

action: the two-t hirds gender rule in Kenya’ (2013) 3:6 International Journal of

Business, Humanities and Technology, 91–92 .

117 Steven Bernardu s Harage ‘Racism as a r isk factor for atrocity c rimes: A case

study on Namibia’ Indicator s and Assessment Tool (IAT) on Raci sm and

Atrocity Cri mes, Global Initiative for Justice, Truth and Reconci liation (GIJTR)

(2023) 94–101, available at 24/05/

Global-Racism-a nd-Atrocities-Toolkit-EN.pdf> (accessed on 22 Febr uary 2025).

118 Ibid.

119 Amanda Cats -Baril ‘Moving b eyond transitions to transformat ion: interactions

between tra nsitional justice and constitution-bui lding’ (2019) 22 International

IDEA Policy Paper 26, 68.

120 Ibid at 65.

121 A/HRC/37/65 op cit note 49 at para 13 pp 4–5.

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BRIDGING PAST, PRESENT AND FUTURE: THE IMPACT OF RWANDA’S

CONSTITUTIONAL REFORM ON TRANSITIONAL JUSTICE AND GENOCIDE

PREVENTION

https://doi.org/10.47348/AYIH/2023/a5

121

commit to a new ideology and map out a collective vision for the

future, cannot be overemphasised. For exa mple, the Democratic

Republic of Congo has experienced continuous cycles of violence since

independence and two massive wars, with The Fir st Congo War of 1996

to 1997 being termed by some as ‘Africa’s First World War’.122 To th is

day, armed conict continues to claim the lives of millions and it is

estimated that approximately 6 million people have been killed since

1996.123 However, the constitution and its amendments have made no

explicit reference to the country’s violent past.124

Sudan is another notable case study. In 2019, Sudan adopted

a transitional constitution, which replaced the preceding 2005

constitution.125 Despite the preamble acknowledging the countr y’s

history and commitment to implementing measures to ‘achieve

transitional justice … strengt hen the pillars of social peace, deepen the

values of tolerance and reconciliation…and rebuild trust between all

the people of Sudan … ’,126 a civil war broke out in 2023.127 Experts have

warned of genocide and ethnic cleansing occurring in Sudan.128 This

is not new to the country. Some of the factors behind the 2003 Darf ur

war, which also gave rise to allegations of genocide, war crimes and

crimes against humanity,129 included ethnic and racial identity, and

122 Claude Kabemba ‘The D emocratic Republic of Congo: From indep endence

to Africa’s First World War’ (2001) UNHCR Ce ntre for Documentation a nd

Research (W RITEN ET Paper No. 16/2000) 2, avai lable at

refworld.org/reference/countryrep/writenet/2001/en/31955> (accessed on

4 August 2024).

123 Shola Lawal ‘A guide to the decades- long conict in DR Congo’ Al Ja zeera

(21 February 2024), available at < https://www.aljazeera.com/news/2 024/2/21/

a-guide-to -the-decades- long-conict-in-d r-congo> (accessed on 19 August

2024).

124 Constitution of the D emocratic Republic of Congo 20 05 (with amendments

through 2011), available at

(accessed on 19 August 2024).

125 Interim National C onstitution of the Republic of Sudan (2005); Cons titutional

Declaration of the Republ ic of Sudan (2019).

126 Paragraph 2 of the Pre amble, Constitutional D eclaration of the Republ ic of

Sudan (2019).

127 Center for Preventive Act ion, Global Conict Tracker ‘Civ il war in Sudan’

(2025), available at l-conict-trac ker/conict/

power-struggle-s udan> (accessed on 25 February 20 25).

128 BBC Newsday ’World ignorin g risk of Sudan genocide – U N expert’ BB C

News (24 May 2024), available at ps://www.bbc.com/news/articles/

c511vgzvl2eo> (accessed on 25 February 2 025); Human Rights Watch ‘Sudan :

Ethnic Cleansi ng in West Darfur’ (9 May 2 024), available at

hrw.org/news/2024/05/09/sudan-et hnic-cleansi ng-west-darfur > (accessed on

25 February 2 025).

129 International Cr iminal Cour t ‘Darfur, Suda n’, available at

cpi.int/darfu r> (accessed on 25 February 2025).

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religion.130 However, even in the constitution immediately preceding

2019, there was no denunciation of the ideology of ethnic, racial and

religious polarisation, and genocide, apart from prohibiting the media

from inciting along these lines.131 Thus, perhaps the 2019 transitional

constitution may have benetted from expressly denouncing the

ideology of ethnic, racial and relig ious polarisation, and genocide, and

making reference to these factors u nder the mandate of the transitional

period, the same way that women’s rights, youth and social welfare

are expressly considered.132 Further research is needed to explore ways

to denounce harmful ideologies while promoting one that fosters

reconciliation, during fragile and complex transitional periods.

7 CONCLUSION

Ideology is a concept that cannot be detached from the discourse on

genocide and transitional justice. Given that genocidal ideology leads

to genocide, it is essential for such ideology to be denounced in its

entirety and for a new reconciliation ideology to be unequivocally

signalled to the population. This article nds that a constitution is

a useful vehicle through which this new ideology can be expressed.

Rwanda serves as an exa mple of how a constitution that denounces

the old ideology, signals a new ideology and incorporates transitional

justice mechanisms is able to contribute to transitional justice and

genocide prevention. The constitutional reform process should also

be guided by three key considerations: rst, the constitution should

be drafted with genuine and meaningful public participation; second,

it should empower the people to be co-agents of the transitional

justice and reconciliatory vision by imposing positive duties on

citizens; and third, the constitutional provisions should unequivocally

communicate the reconciliation ideology, and expressly acknowledge

the past legacy of mass atrocities as well as the way forward. All of this

combined has the potential to contribute positively to the transitional

justice process, aid in restoring unity a nd usher a nation into a new

dispensation.

130 Joseph Smiles ‘T he root causes of the Darf ur conict ’ (2008) 33:1 Journal fo r

Contemporary History 59, 61–64.

131 See art 39 of the 2 005 Constitution and art 57 of the 2019 Constit ution.

132 See art 8 of the 2 019 Constitution ( Mandate of the Transitional Period).

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