This article is part of a debate organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please go to www.csls.ox.ac.uk/otjr.php.
The debates over transitional justice in Kenya have been largely silent on the issue of the Truth, Justice and Reconciliation Commission (TJRC). It is evident that beyond the initial commentary at the TJRC’s inception – when the appointment of some commissioners was vigorously queried – much of the attention has focused on possible prosecution of key perpetrators either in The Hague or by the Special Tribunal for Kenya.
I don’t envy Louis Moreno-Ocampo in his position as chief prosecutor of the International Criminal Court (ICC). However, that is not to suggest that I will be either sympathetic or forgiving if he botches the investigations of Kenya’s high-profile suspects. This article argues that Kenyans must monitor the approach and performance of the ICC in the country.
When Prof. Makau Mutua suggested that the Liberian Truth and Reconciliation Commission (TRC) may have lessons for Kenya, he focused on the robust recommendations of the Commission. He did not explore another reason why Kenya might look to Liberia: the crisis of credibility that plagued the beginning of Liberia’s TRC process. This essay argues that there are good reasons to take seriously the challenges to credibility, because they often denote a shortcoming in institutional legitimacy, itself thought to influence the effectiveness of transitional justice processes.
When a Kenyan Cabinet minister suggested in early 2007 that perpetrators of corruption be pardoned if they confessed their guilt and returned the spoils, there was surprisingly little public reaction. This was perhaps taken with a pinch of salt given that Kenyan politicians are good at talking but then doing nothing. But when former anti-corruption chief John Githongo (accused by some of behaving like a drama queen and self-appointed high priest), made a similar statement in mid August 2008, his view made headlines that drew sharp reactions.
This is the second of three essays on misconceptions in debates over transitional justice in Kenya. The first essay considered complementarity and the Truth, Justice and Reconciliation Commission (TJRC), and argued that, if Kenya’s situation was otherwise admissible to the International Criminal Court (ICC), the TJRC in its current form is unlikely to satisfy the Court’s complementarity test. This essay considers the discussion on domestic prosecutions in Kenya.
From the standpoint of constitutional law, the handing over of the Waki envelope to the prosecutor of the International Criminal Court (ICC) represents the ceding of judicial autonomy of the state to an ‘exceptional court’. The establishment of a domestic special tribunal which supplants the supervisory jurisdiction of the High Court and strips the president and attorney general of constitutional powers and immunities has a similar effect.
The Kenyan Cabinet recently resolved to put forward the Truth, Justice and Reconciliation Commission (TJRC) as a way to address the post-election violence. In this first of three essays looking at some of the misconceptions in the transitional justice debate in Kenya (the next two contributions will consider domestic and international prosecutions respectively), I evaluate whether the establishment of the TJRC makes the Kenyan situation inadmissible before the International Criminal Court (ICC).
The truth about the beliefs and perceptions of the majority of Kenyans is not to be found in erudite forums and debates such as this one. To really understand the Kenyan mind, one needs to visit the marketplaces and the pubs in ethnically homogenous regions of this beautiful country.
There is a renewed interest in a new constitutional order in Kenya. A bad constitution is blamed for the post-election crisis, allowing the president to pack the electoral commission with his cronies shortly before the election; a largely unaccountable electoral commission declaring presidential election results without proper counting or reliable records; enormous powers vested in the office of, or illegally appropriated by, the president; the centralisation of power in Nairobi; the lack of public participation; the lack of autonomy, effectiveness and legitimacy of state institutions, particularly those for accountability and justice, principally judges, police, prosecution and the attorney general; opportunistic political parties and unprincipled politicians; and resulting corruption and wide scale impunity.