The necessity of transitional justice in Kenya and the merits of certain institutional mechanisms in particular have been vigorously debated in this forum, as well as within the country itself.  In both of these contexts, the perspectives of victims of past violence have received only modest attention.[1] Of course, their voices hardly rate as the only ones that matter; politicians, officials, activists and scholars are also vital to transitional justice processes, not to mention non-victims in the general population, whose participation as defendants, witnesses and observers is typically required for such processes to prove constructive.  That being said, whether or not victims are satisfied with the approach taken and experience some degree of restoration and healing as a result represent clear benchmarks to measure the acceptability and efficacy of transitional justice measures.

To help understand how victims of the 2007-08 episode of post-election violence and other past political abuses in Kenya view transitional justice and what they might be willing to contribute to its execution, we conducted a series of focus group discussions around the country in the Summer 2009.  The time was ripe for gauging the opinions of victims, since key actors within and outside the country were considering whether to try suspects of post-election violence locally or at the International Criminal Court, while simultaneously Kenya’s Truth, Justice, and Reconciliation Commission (TJRC) moved toward implementation.

We selected areas of Kenya most affected by post-election violence, and an experienced moderator conducted pairs of focus groups using a mixture of Swahili and local languages in seven different locations: Nairobi’s Mathare and Kibera slums; Kitale, Eldoret, Nakuru, and Naivasha in Rift Valley province; and Kisumu in Nyanza province.  In each location, we split the two groups either between men and women or between youths and the middle-aged/elderly.  The locations resulted in groups of mixed ethnicity and political affiliation.  The groups ranged in size from five to 10 participants, with an average of six.  To recruit these individuals, we relied on a network of grassroots-level non-governmental organizations that work with victims in the various locations.  All of the participants had been affected by post-election violence via harm to their own or their family members’ physical well-being and/or damage to their property.

We believe our approach, though limited in scope and lacking a representative random sample, affords certain advantages over a national public opinion survey.  First, we concentrated the research on those most affected by violence and proposed transitional justice mechanisms.  Second, victims are a distinct, small sub-population whose perspectives are difficult to capture—unless the concentration or overall prevalence of violations is very high—via the conventional sampling procedures that are typically employed for public opinion surveys.  Purposefully targeting this sub-population, including by restricting ourselves to select locations, was therefore an efficient approach to highlight an important constituency.  Third, the relatively open format of focus groups enables participants to express their attitudes, beliefs and desires in their own words and thus elicits answers that provide a richer understanding of how they view complex concepts and difficult issues.

The main subjects of the discussions included various aspects of the disputed elections and resulting violence; the current political climate; and relevant dimensions of transitional justice.  Here, we present insights concerning the participants’ attitudes about justice and amnesty; preferences for specific institutional options; views about the ostensible tradeoff between peace and justice; and perspectives on the extent of and potential for reconciliation.  Our hope is that this study, by injecting the vital perspective of victims based on recent original primary empirical research, informs not only the policy debates and institutional processes that are underway in Kenya, but also the public education programs that civil society has initiated to foster transitional justice.

Justice

In principle, a successful transitional justice process is predicated on a shared conception of justice and what specific mechanisms may yield in terms of benefits for victims.  Therefore, the initial question posed to each of the focus groups was: “What does justice mean to you?”  Rather than mentioning abstract notions like fairness, rightness or even legality, the responses generally fell into two broad categories: punishment and compensation.  Both conceptions are fully intuitive and relate directly the concrete consequences of post-election violence.  Lasting fears of living in proximity to perpetrators within communities are common.  In addition, many of the participants were forced to flee their homes and jobs and face continued difficulties in subsisting as a result of injuries and the inability to find employment.  Meanwhile, only a few of the participants linked justice to reconciliation, specifically dialogue and civil engagement.  Thus, the dominant conceptions of justice emphasized official actions to prosecute those responsible for post-election violence, as well as material assistance.

An overwhelming majority of the participants, however, were dubious about prospects of justice actually materializing in Kenya.  This skepticism is unsurprising given the country’s weak judicial system, a political class that is widely perceived to be indifferent to the plight of victims of violence, and past abrogated attempts at investigations, prosecutions and reform.  According to the participants, the main impediment to the implementation of justice is Kenya’s leaders, who are seen as venal, dishonest and likely to manipulate any commissions and tribunals.  An elder in Kitale sums up these feelings best: “Justice is devilish.  I have to bribe to get justice.”  Likewise, a male respondent in Eldoret captured the pessimism about the current state of politics: “It’s hard for Kenyans to get justice with our current crop of leaders.”  A youth participant in Dandora even argued that the current situation is worse than before: “Politics has really gone down.  It is becoming dirtier.”

Amnesty

The amnesty clause in the act establishing the TJRC, which allows perpetrators of certain rights violations to avoid prosecution if they come forward and confess to the Commission, has been controversial.  Public support for amnesty might wane in the face of ICC prosecutions, especially since many of the alleged perpetrators include present or former cabinet members, other members of parliament, local government officials, and prominent business leaders.

Likewise, the focus group participants were rarely inclined to unconditionally forgive and forget the offenses committed by those involved in the post-election violence.  At the same time, the participants drew a sharp distinction between the organizers and the actual perpetrators of the violence, exhibiting a far greater willingness to grant amnesty to the latter rather than the former, albeit with caveats on both fronts.  With respect to the perpetrators, many of the participants suggested a potential willingness to approve of amnesty as long as perpetrators acknowledged their wrongs, confessed in person, and expressed a sincere and meaningful desire for forgiveness. A frequent sentiment was that such steps would provide sufficient closure for individual victims to move on with their lives.  As one man in Eldoret suggested, “the only way for amnesty is for them to acknowledge their wrongs. We can forgive.”

Yet not all of the focus group participants were prepared to feel consoled if perpetrators admit guilt.  Some fervently rejected amnesty, expressing residual anger and resentment that is best summed up by a woman from Nakuru: “They can talk of amnesty, but we, the real victims, cannot forgive.”  Another man in Nakuru echoed the fears of many respondents about amnesty promoting impunity, in making the case for accountability as a means to prevent future violence: “If they [perpetrators] killed and are released, that will motivate others to the same atrocities.  There has to be punishment to deter others.”  Likewise, a male participant in Naivasha argued, “they [perpetrators] should be jailed for life so that they be a lesson to others.”

Institutional Mechanisms

Criminal Prosecution

The discussion of the possibility of trying individuals complicit in the post-election violence generated differing levels of support for three options: the ICC, a special tribunal in Kenya, and a hybrid system involving both international and domestic elements.  At the time, all of these options were receiving serious consideration in policy debates.  Subsequently, the ICC decided to proceed with formal investigations, which are likely to result in indictments of various perpetrators.  While these steps appeared to diminish the prospects for instituting a domestic tribunal, this option is still advocated periodically.

A large majority of the focus group participants preferred to send those involved in the violence—especially the organizers—to The Hague for trial.  The inclination to eschew local accountability, in favor of an international alternative, was based on several factors.  For one, participants commonly expressed confidence in the ICC’s ability to achieve important outcomes.  A young woman in Mathare indicated, “Let The Hague take ten years, but we will know the truth and at the end we will have results.”  A second woman said, “Politics is accompanied with violence.  Hague could change that and impunity will cease.  They will be punished well there.”  Others cited corruption in the Kenyan courts, the ability of politicians and other powerful individuals to subvert the legal process, and the potential for sparking further conflict.  As a woman in Kibera noted, “I think they [perpetrators] should go to The Hague because you might find these politicians may know the judges and even bribe them to have their way.  If they go to The Hague, truth will rule.”  A man from Eldoret agreed: “Local courts don’t have justice. The organizers are rich and therefore they will interfere.  They should go to The Hague so that at least justice will be served.”

A smaller number of participants advocated a process in Kenya.  Some made this case on the basis that the trials would then be more accessible and enable closer observation as well as direct participation.  As one participant from Kisumu stated quite succinctly, “We would like to witness.”  Similarly, an elder in Kitale argued: “I prefer here so that everyone can have their say.  We have to witness in those trials. We can’t all go to The Hague; we will have a more effective trial locally.”  Others reasoned that far more people could be tried locally, whereas relatively few could reasonably taken to The Hague.  Certain participants also worried that conducting trials in The Hague would mean only the organizers of violence would be prosecuted, allowing the actual perpetrators to go free.  The few participants who advocated a hybrid system saw the potential for complementary functions, with organizers being sent to The Hague, while a domestic tribunal would try the perpetrators.

Truth, Justice, and Reconciliation Commission

Meanwhile, the participants’ attitudes about the TJRC were almost universally negative.  Many seemed skeptical of its utility and suggested this process would be a waste of resources that could instead be going directly to victims, if not a further venue of corruption, rather than serving as a useful vehicle for rapprochement.  For example, a male respondent from Nakuru stated: “These commissions are just for making money.  They are just using them for the wrong purposes.”  A young woman in Mathare echoed his sentiments: “That is just scheme to use public money.”  Others indicated that the TJRC would be a political stunt above all else, doubting the extent to which it would engage and be responsive to the victim community.  As one participant noted, the process “won’t be ours,” but rather a top-level political process.  A woman in Eldoret underscored this skepticism by arguing, “That commission is just theirs.  We don’t have any say.  In fact, for anything that happens in Nairobi, we face the repercussions.”  Furthermore, multiple participants referenced a conspicuous history of failures by previous commissions to follow up on formal inquiries and effect change: “Commissions have been formed and are fake.  They never act on their reports” [young woman in Mathare].  “They never implement what they report” [male respondent from Nakuru].

A minority of the participants expressed cautious support for the Commission, but still questioned its fairness, the legitimacy of its leadership and its potential impact.  In addition, the few participants who did say they wanted the commission conditioned their support on the delivery of financial assistance, the creation of jobs or the punishment of offenders.  These stipulations echo the observations we made earlier that victims seem especially interested in substantive outcomes.  A process alone is seen as largely inadequate, not least because victims lack confidence in Kenyan institutions and officials operating with integrity and acting in the public interest, let alone conscientiously addressing the needs of victims.  In fact, the TJRC has commenced operation and begun to hear evidence, but continues to be plagued by the controversy over Chairman Bethuel Kiplagat’s past association with former President Daniel arap Moi’s regime, itself a violator of human rights.

Peace or Justice?

Earlier, we mentioned the participants’ fears that any efforts to prosecute individuals implicated in the post-election violence could incite further violence and threaten the security of populations that have already been victimized—a standard concern in countries that have undergone a transition from a period of conflict.  These anxieties may be based on only the theoretical risk of a backlash, without a clearly quantifiable threat.  That being said, comparative examples of such violence do exist, including instances where victims have been specifically targeted, e.g., the killings of dozens of witnesses in Rwanda’s gacaca proceedings.  Along similar lines, the absence of legislation and institutions to safeguard witnesses in Kenya has recently come to light as the ICC has begun its investigations.

These and other sorts of vulnerabilities and apprehensions presumably contribute to the fact that the focus group participants were split on whether they support legal accountability for those involved in the post-election violence, or peace and stability.  Those in the latter category expressed a desire to co-exist harmoniously and to live free from fear.  A woman in Naivasha advanced this point, making reference to the dire consequences of conflict, “If we had peace then we would not be wearing donated clothes.”  Those desiring justice argued that justice itself is most likely to produce peace and stability in the long run.  One man in Naivasha related the metaphor, “Justice is the table that carries peace.”  Another said likewise, “If you have justice you get everything else.”  A young participant argued, “You must have justice in order to be free.”  Not everyone drew a direct link between justice and peace, but rather some participants observed that peace can be a tenuous state of affairs and mask underlying grievances that implicitly could simmer and hold the potential to become disruptive.  As one woman in Kibera noted, “we are living peacefully yet we live grudgingly because some of us were violated and undermined.”

Interestingly, the participants in each focus group tend to share similar attitudes about this issue, but there were not consistent patterns by gender and location.  For example, the female participants in Kibera wanted justice first and foremost, whereas their male counterparts preferred peace and stability.  In Naivasha, by contrast, the female participants prioritized peace and stability, while the male participants desired legal accountability.  A natural explanation for the intra-group similarities could be participants following the lead of the first one or two peers to speak.  Yet the other questions did not yield this sort of consistency in responses, as might be expected if certain participants in each group were influencing their peers.  In so far as we can rule out that sort of phenomenon, it appears that attitudes concerning the choice between justice and peace and stability are highly contextual in terms of geography and personal traits.

Reconciliation

Definitions of reconciliation varied considerably among the focus group participants.  The most common understandings were forgiveness, acceptance of others, and acknowledgement of wrongs committed.

When asked whether reconciliation was occurring in their area, or in Kenya more generally, virtually all of the participants believed that progress had been modest at best.  They pointed to many pieces of evidence, most notably their continuing fear of returning home, the fact that stolen properties have not yet been returned, and the failure of perpetrators to apologize or be punished for their transgressions.

The participants were equally cynical about the prospect of reconciliation down the road, even questioning the basic readiness of Kenyans to pursue and achieve this outcome.  A Nakuru woman asked, “How can there be reconciliation when I am still feeling the pain for my murdered son?”  This visceral reaction is evidently widespread, with another participant observing that many victims “still feel the pain.”  Some also cited the ongoing presence of perpetrators in their communities and were resistant to the notion that under these circumstances reconciliation could be achieved through policy pronouncements alone.  As a Kitale elder explained, “If you killed my father, [even] if the government says we should live together, I can’t live with you.  I still have anger.”  Others blamed inter-party wrangling within the Coalition government, which was viewed as a persistent problem.  A further source of worry was the strong ethnic elements to the post-election violence, which have not dissipated and were even exacerbated in some areas by the flight of people and the development of enclave communities.

Conclusion

This brief article represents a first installment of insights from victims of post-election violence concerning their preferences about and expectations for transitional justice in Kenya.  The series of 14 focus group discussions we conducted around the country reveal urgent desires for redress of past harms and losses and for fundamental changes in politics and society, so that people can have the basic necessities of life and not face constant fears of renewed conflict.  The focus group participants were supportive of and otherwise open to a variety of transitional justice options, typically with a bottom-line focus on what is required to achieve meaningful and lasting results.  On this count, the strongest sentiment favored compensation to victims as well as prosecution of those responsible for organizing the violence, a task that most preferred to assign to international authorities.  Progress in these respects was viewed as essential for stability and reconciliation.  Yet there was considerable skepticism among the participants that these challenges would be taken up promptly and effectively and have a lasting, positive impact on the lives of victims and peace in Kenya.

* David Backer is an Assistant Professor of Government at the College of William & Mary (Virginia, USA) and a Visiting Fellow of the Kroc Institute for International Peace Studies at the University of Notre Dame (Indiana, USA).

Joseph Lahouchuc recently graduated from the College of William & Mary with a BA in International Relations.

James Long is a PhD candidate in Political Science at the University of California, San Diego (USA) and a Jennings Randolph Peace Scholar at the United States Institute of Peace

Download the Pdf version of this paper here.

[1] Notable exceptions include civil society campaigns and surveys conducted by South Consulting for the Panel of Eminent African Personalities to measure progress on the Kenyan National Accord and Reconciliation Act.  For the findings of the latter, see http://www.dialoguekenya.org.

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. One could attribute this fixation with The Hague, Special Tribunal and the envelope delivered to the Prosecutor of the International Criminal Court (ICC) to the contentious nature of the process, and the fact that the Prosecutor’s sights are trained on some Kenyan principals. However, I suggest that this sole focus on prosecutions – and in particular the ICC – is somewhat misguided. Here, I consider, – based on the strength of several legal, policy and practical considerations – why Kenyans need to embrace and own the TJRC.

First, we need a comprehensive view of justice. While prosecutions are necessary, international law requires that we prosecute at least the most serious crimes and those who bear the greatest responsibility. But justice is not complete by only jailing a handful of perpetrators. We need approaches that will attend to the concerns of victims such as reparations, rehabilitation and truth telling. We also need approaches that address the broader national questions that foster inter-ethnic rancor, impede peaceful coexistence and national reconciliation.

Second, the ICC can and will only prosecute a few individuals. Even locally, a Special Tribunal and national courts cannot prosecute all of those who wielded machetes, stones and homemade guns. We must find other options of accountability. This is what the recent endorsement by the ICC Prosecutor for a ‘three-tier approach’ is about.

Third, we must internalize the fact that trials will only yield judicial truth: truth relating to whether a particular individual is guilty or not for a particular crime. Trials will not tell us enough about context and history. Trials reveal little – and will leave unopened the closets of Wagalla, Likoni, Molo, Burnt Forest, Elgon and other places. Crucially, the law will prevent us from prosecuting most – if not all – crimes committed decades ago because of the problem of retroactivity. But at the TJRC, we can open those closets and ensure that the victims of Wagalla at least know the truth, and have an opportunity to receive reparations. We may know who perpetrated the violence, and find ways of ensuring they account for it: for instance we can ban the public figures among them from running for public office.

The TJRC’s process should not be equated to impunity. One of the key functions of the TJRC is to ensure this global truth comes to the fore, is recorded and committed to national memory. It will ensure that no one re-writes history to suit their own beneficial narrative. It will ensure that we come to terms with the past and begin to find ways of moving forward. The events of 2007 occurred partly because we have too many unaddressed instances of injustice.

Fourth, we must embrace the TJRC because we as a nation called for it. We must support it because we need it. The TJRC is not a foreign imposition. It is not even an imposition by politicians or the Kofi Annan talks. The TJRC has deep roots in battered communities around the country. Since at least 1992, Kenyans thirsted for truth. The Mutua Task Force in 2003 said as much. When Kenyans spoke to the Ghai Commission on constitutional reforms (CKRC), many said the same. It is safe to conclude that in 2003, the TJRC’s creation was merely suspended because of political games.

Fifth, truth commissions – unlike trials – operate flexible procedures that allow for the widest possible opportunity for victims to participate, tell their stories and confront their tormentors in a less adversarial and friendly forum. Access to justice is of paramount importance. Few victims can locate The Hague on a map. Even fewer will participate in The Hague or receive reparations should trials commence. The TJRC can – and should – bring a keen listening ear and justice to a town they know near them.

Sixth, as the cases of South Africa, Sierra Leone and others demonstrate, truth commissions have their flaws. While we may want as many people as possible – if not every perpetrator – to be prosecuted for crimes, this may not be possible for some of the reasons suggested above. Further, insisting on prosecutions may not foster truth telling. That is why the Truth, Justice and Reconciliation Act that creates the TJRC, provides that those who testify before the Commission will not incur criminal or civil liability. I remain convinced that without a TJRC, where people can talk without fear of prosecution and other harm, we are bound to repeat the murderous folly of 2007-2008. Truth can set Kenyans free.

The TJRC can only succeed if we want it to succeed. We may not like some commissioners for a range of reasons, but we can make the process our own. We must publicly and critically ask piercing yet constructive questions of the TJRC. Sometimes the sheep know best where the grass is greener, and the shepherd must follow.

However, truth searching must be managed in a transparent and accountable manner. The hunter must have the right tools, and must know their craft. It is important that the Commissioners, especially those inexperienced in matters related to truth commissions, gain a deep understanding of the relevant issues. The TJRC must have the right gear that will enable it not only to open, scrutinize and record what lies within closets of historical injustice, but to commence a process though which at least some of its key consequences can be addressed. It matters what you do with the truth you have unearthed. For these reasons, the TJRC must be supported, but it cannot stand alone. The ICC is relevant, as are the Special Tribunal and the national courts. Moreover, this comprehensive process must be supported by other related measures.

We must address the concerns of victims. This requires different forms of unwavering government and civil society commitment. Those currently grappling with matters of constitutional and other institutional reforms must act diligently and a sense of historic responsibility. They must consider themselves part of, rather than separate from, the broader transitional justice project that is unfolding in Kenya.

* Dr Godfrey Musila is a senior researcher at the Institute for Security Studies in Pretoria, South Africa. A version of this opinion appeared on the Standard on Wednesday 21 October 2009

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 the Rome Statute was enacted in 1998, human rights advocates everywhere enthusiastically gloated over the prospect of a World Court that would finally confront the demon of impunity. We began to believe that leading perpetrators might run but they could no longer hide. Indeed, we thought that prosecuting ‘those bearing the greatest responsibility’ for war crimes, genocide and crimes against humanity, meant that never again would the world witness atrocities on the scale of the twentieth century.

However, seven years after the ICC’s establishment, there is much more scepticism than delight over its capabilities and performance. For most of that time, the Court has lacked staff, resources and international support. Paper pledges and political indifference have characterised most of its tenure.

Beginnings are always difficult and admittedly, much time and effort have gone into establishing the Court and enlisting member states. Currently, 110 states have ratified the Rome Statute. Missing in that list, however, are such superpowers as India, China, Russia and the United States. No wonder then that US Ambassador to Kenya, Michael Ranneberger, could issue only puerile threats about the reform agenda, and have nothing of substance to say about impunity and support for the ICC. Regrettably, this point was missed by most commentators in their debate on the letters sent by the US to blacklisted Kenyan politicians.

Lacking support from the major powers, Moreno-Ocampo has spent most of his time acting more like a diplomat than a criminal prosecutor. His strategy has focused on persuasion and co-operation rather than enforcement of the Rome Statute. In fairness, he has had little option as the ICC mandate may well be clear and precise but it lacks enforcement powers. In other words without its own police force, the Court is totally dependent on international co-operation to apprehend suspects.

As a result, he has been reduced to going about his work by trial and error. However, we have witnessed more errors of judgment than court trials in the last seven years. Indeed the only trial currently proceeding in The Hague is that of little known Thomas Lubanga of the Democratic Republic of Congo (DRC), and that case is moving at a snail’s pace.

Moreno-Ocampo hardly got off to a dream start in 2004 with his handling of the conflict in neighbouring Uganda. Instead of using his prerogative powers, he sought an invitation from the Uganda government to investigate atrocities in northern Uganda. President Museveni gladly accepted the opportunity to co-operate, since he believed the ICC would focus only on atrocities committed by Joseph Kony’s Lord’s Resistance Army (LRA) with no investigations of atrocities committed by the Ugandan army. To date, the ICC’s prosecutorial strategy has mirrored Museveni’s expectations. The ICC got its first state referral case and Museveni got another weapon to attack the LRA. Moreno-Ocampo was thereafter widely accused of reluctance to prosecute government officials.

However, in fairness, the indictments against Kony and four of his rebel leaders did have an impact on the war in the region. The LRA became increasingly isolated as Sudan could no longer grant it a safe haven, and with the signing of the Comprehensive Peace Agreement in 2005, Khartoum was obliged to disarm all militias and maintain peace. Consequently, Kony and company were forced to the negotiating table. Their arrests have remained elusive but the atrocities have considerably reduced.

The ICC has also been accused of targeting African states. However, the cases of Uganda, DRC and Central African Republic have all been state referral cases. The case of Sudan, however, represents a serious change in approach. The Sudanese indictments came as a result of a 2005 UN Security Council Resolution, as Sudan has not ratified the Rome Statute. A UN resolution ostensibly has world backing and Moreno-Ocampo used that leverage to remove his kid gloves and openly indict current state officials for the first time in the ICC’s history.

The first warrants of arrest for Sudan were issued for Minister Ahmed Haroun and Janjaweed leader Ali Kushayb in 2007. On 4 March 2009, the Pre-Trial Chamber granted Moreno-Ocampo’s request to issue a warrant of arrest for President Bashir. That marked the most significant achievement of the ICC to date as a sitting head of state was indicted for the first time. It sent shock waves across the continent and brought world attention to the ICC and Moreno-Ocampo, who had accused Bashir of ‘exterminating his own people’.

At the African Union (AU) summit in Libya in July, continental leaders said they would not co-operate in the arrest of Bashir. In reality the political leaders wanted to protect their allies and worried they could be the next ones arrested.

So the Kenyan case comes at a very significant moment in the ICC’s development. The Chief Prosecutor appears to have grown in confidence and is anxious to have a high profile case to garner international support for the Court. The question is whether he can perform and deliver. The Kenyan case has the potential to make or break the ICC and Moreno-Ocampo knows that.

To date, the ICC has at best operated as a deterrent. The stigmatisation of naming and shaming sitting government officials has spread trepidation everywhere. Arrest warrants have considerably reduced the likelihoods of atrocities and that is a considerable achievement. Yet, the Court was established to prosecute and punish and in that respect it has failed to do justice to victims. Moreno-Ocampo himself has stated that ‘arrests are essential for the ultimate efficiency and credibility of the court’.

The ICC cannot be allowed to fail in Kenya. More investigators and professional staff need to be employed while a regional office must be established as a matter of urgency. The International Criminal Tribunal for Rwanda (ICTR) is scheduled to wind up its hearings in Arusha at the end of this year. Would the Tanzanian city not be an excellent venue for ICC regional offices and local tribunal chambers? Elaborate plans for witness protection are also essential if we recall that after a commission of inquiry into the assassination of Dr Robert Ouko, 42 witnesses ‘died’ in a few years.

Kenyans have great faith in the ICC’s ability to prosecute the principal perpetrators of the post-election violence. Those who suffered and survived, the internally displaced persons (IDPs) and the families who lost lives and livelihoods deserve the best justice the world can offer. However, when the ICC begins its work, we must not let the virtual court of the world’s political powers allow political expediency to take over at a critical stage in the proceedings. That is why we must treat with suspicion European, American and UN pledges to end impunity. This case is about Kenya, and Kenyans must not sit back passively and wait for the ICC to set the pace for investigations and prosecutions. They must be pro-active on every front to ensure that we have a satisfactory outcome. Kenyan civil society must monitor Moreno-Ocampo’s performance from the outset and remind him and the ICC that they are also on trial in this country.

*Gabriel Dolan has worked in Kenya since 1982, mostly with Catholic Justice and Peace Commission on issues of human rights. Currently, he works on the rights of slumdwellers’ in Mombasa.

gdolan54@gmail.com

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. The essay does not intend to suggest that credibility causes, or can be equated to, effectiveness; while credibility can be thought of as necessary, it is only one of a broad range of factors that affect the capacity of an institution to achieve the goals it pursues. Rather, this essay shows how TRC procedures in Liberia, the Democratic Republic of Congo (DRC) and Serbia affected the manner in which the institutions were perceived and draws some lessons for Kenya.

In Liberia, the Comprehensive Peace Agreement of 21 August 2003 recommended the establishment of a truth commission as one of the institutions of transition. Soon after, Gyude Bryant, the Chairman of the National Transitional Government (NTGL), appointed nine commissioners to a truth commission in January 2004 – before there was even a TRC Act. This immediately created a significant challenge to the credibility of the Commission, namely the lack of selection criteria for the commissioners, public consultation, or clarity regarding the Commission’s goals. Civil society pointed out that the Commission “lacked set objectives, mandate, jurisdiction or legal status” (TRC Report, Vol.2 p140, 8.1.1). Following a series of civil society consultations and workshops, a TRC Act was drafted and presented to the Chairman in August 2004. More pressure resulted in the Chairman forwarding the TRC Act to the Legislative Assembly in April 2005. After further lobbying by civil society, the TRC Act was finally signed into law on 10 June 2005. The TRC Act Section 9 (b) summarized the problem:

Recognizing that the Chairman…appointed commissioners before the enactment of legislation establishing the Commission…[and] affirming the need for the TRC process to be credible and legitimate and accepted by the nation…the Commissioners appointed by the Chairman…will be vetted.

Accordingly, the first set of commissioners appointed by Chairman Bryant were vetted in accordance with the guidelines of the Act to ensure that no member of the Commission would be “known or perceived as human rights violators or members of groups involved in human rights violations; and without prior conviction for a crime” (Section 11, Liberian TRC Act). Only two of the initial nine commissioners were retained by the new selection panel. Indeed, the initial chair of the initial Commission, Dr. Canon Burgess Carr, did not survive the vetting (TRC report, Vol.2, p142). The vacancies created allowed for seven new commissioners to be selected by a representative panel. It was this “second” TRC, inaugurated by President Ellen Sirleaf Johnson in January 2006 – two years after the “first” TRC – that delivered the report to which Prof. Mutua referred.

However, not all commissions with credibility challenges have recovered. Here, the examples of the DRC and Serbia are worth mentioning. Similar to Liberia’s initial process, in the DRC, seven members of the TRC Bureau were appointed directly by the warring parties following the peace agreement, before the TRC law was promulgated. The seven had formal relations to the groups implicated in the crimes of the war, thereby leading to civil society protest about the integrity of the Commission. According to some observers, commissioner competence and human rights records were also questioned. The government eventually passed a TRC Law that appointed 13 additional commissioners (without removing the first set of commissioners), but this action did not change the negative perception of the Commission. Neither did the appointment of Reverend Jean-Luc Kuye-Ndondo as the president of the Commission: while he was a member of the church, he was presiding over an institution whose moral authority was in question, and besides, some thought he lacked the “stature and charisma needed to provide symbolic unity” to the DRC. Consequently, the TRC was criticized and marginalized, becoming by some accounts a “stinging failure”.

In Serbia, the TRC project faced credibility challenges from which it never recovered. In March 2001, President Kostunica instituted the Yugoslav TRC. The TRC was announced a day before the US was due to certify continuation of financial support, and was therefore seen by some as aimed at appeasing the US. The Commission was lacking on many fronts. First, it was neither consultative nor inclusive: of the initial 19 members appointed, there were “mostly nationalist conservative academics” (Subotic 2007: 96), only two were ethnic minorities, and other civil society groups were under-represented. Second, its mandate was seen as an attempt to attribute blame for the war rather than an attempt to grapple with the consequences for victims. Further, the Commission sought to shed light on a broader Yugoslav crisis from an ethic Serbian perspective. Consequently, some commissioners resigned from the TRC, further affecting the credibility of the exercise. The TRC could not even organize a public hearing on the Srebrenica massacre. It was disbanded in 2003 when the office of the federal presidency was abolished. The conclusion of observers is that in Serbia, the truth commission “brand” is “utterly devalued” (Subotic 2007: 98).

There are significant differences between Kenya and the other TRC projects mentioned above: while Musila points out here that in Kenya there was minimal consultation with NGOs during the drafting of the TJRC Bill, the law nonetheless seemed to contain reasonable procedures for commissioner selection. Section 9 of the Kenyan TJRC Act provided for a selection committee that was constituted by then Justice Minister Martha Karua, and it consisted of nine individuals: seven representatives from different social groups and two representatives from a list of six Kenya-based religious organizations. The role of the selection committee was to nominate the persons for the Commission, in accordance with given selection criteria. The committee selected 15 names in April 2008, from whom the president appointed six commissioners. However, upon the appointment of the commissioners on 22 July 2009 under the guidance of Ambassador Bethuel Kiplagat, prominent survivors past state violence protested, citing Kiplagat’s prominent role in the Moi regime. They launched a law-suit against him. In this context, some observers called for the deputy Chair, Ms Betty Murungi, to resign lest she tarnish her reputation.

Given the detailed nature of the selection process, how could controversial individuals have been picked to the Commission? One answer may lie in a minor change in the criteria for Kenyans to serve on the Commission. While an earlier version of the Bill stated in Section10 (5)(c) that commissioners must not have been “involved, implicated, linked or associated with the perpetrators or supporters of the acts, crimes or conduct under investigation”, the final TJRC Act states that the commissioners must not have been “involved, implicated, linked or associated with human rights violations of any kind”. With this change, it was possible for possible actors associated with “perpetrators or supporters” of human rights violations within in the Kanu regime to become commissioners. Another reason why controversial commissioners were picked despite a seemingly rigorous selection process may be simply mathematical: the nature of real compromise required for 9 individuals to select 15 names can be negligible.

Perhaps a bigger challenge to the TJRC has been the vilification of its mandate, as “reconciliation” is increasingly seen as a dirty term, synonymous with “impunity”. While these terms have flexible, politically-contextual meanings, the current negative perception of the TJRC may stem in part from the possibility that the opportunity cost of the Commission is significantly higher in 2009 than it was in 2003, when Kenyans initially advocated for the TJRC: in 2003, the alternative to the TJRC was the continuation of the status quo. In 2009, in light of the Waki report and the subsequent public debate, the alternative to the TJRC is seen as prosecutions. This higher cost makes compromise harder to accept. Consequently, erstwhile advocates of the TJRC such as the National Council of Churches of Kenya (NCCK) state that they “shall neither recognize [the TJRC’s] work nor engage with it when it commences its proceedings unless the cabinet reverses its decision[to expand the TJRC’s mandate and representation] and either refers the matter to the International Criminal Court at The Hague or establishes a credible and effective local tribunal.”

Is there a risk that the TJRC brand may become “utterly devalued” or a “stinging failure” in Kenya, as was the case in Serbia and the DRC? From the three cases above, it appears that truth commissions can succeed, underperform or fail depending on how credibility challenges are addressed. Further, these three contexts highlight that “credibility” is often used as a synonym of “legitimacy”. If a legitimate institution is one that, among other things, pursues the general interest as understood by citizens (rather than by power-holders) and whose authority is consented to by relevant constituencies (Beetham 1991), the Kenyan TJRC faces a legitimacy gap. And to the extent that legitimacy has a reciprocal relationship with effectiveness (of the institution in itself, outside any claims it may make about broader social impact and consequences), this gap ought to cause concern. Prominent Kenyan victims, whose cooperation is thought to be critical for the success of the TJRC, have publicly withdrawn support from the institution, and cast into doubt the ends it seeks. Such a withdrawal can affect the quality of collaboration the institution receives from such stakeholders, and can result in the institution expending more time and resources counteracting the effects legitimacy gaps, rather than on the difficult task of historical clarification. It is for this reason that the concerns about credibility should not be dismissed lightly.

Yet the official response to these challenges has been weak and uncertain, suggesting that the government hopes the questions will soon disappear. The government suggested (then discarded) a revision of the mandate of the TJRC. It also suggested expanding the number of commissioners, a suggestion that was broadly rejected because it was read as having ethnic implications. The latter proposal may have been useful: for instance, on the list of rejected potential commissioners were two clergymen – Archbishop Benjamin Nzimbi and Reverend Timothy Njoya. Given the centrality of Christianity in Kenyan life, the absence of religious representation in the Commission may be an oversight whose consequence has been the Church’s rejection of the TJRC. However, there has not been a comprehensive suggestion of how to address the matter of the credibility of the individuals already on the Commission. If the DRC has any lesson to offer the Kenya case, it is that leaving this issue unaddressed can undermine the TJRC’s moral authority. Nor has any measure been taken to respond to the conflation in people’s minds of reconciliation and impunity in the absence of prosecutions.

Before making recommendations of potential avenues for relegitimation for the TJRC, it is important to note that while the basic argument of this essay is that it may be necessary for a commission to be credible in its initial set-up, it does not imply that such credibility is sufficient for the exercise to be successful in giving robust recommendations. Neither does it suggest that such robust recommendations actually make any difference for reconciliation, human rights and democracy (or other goals of transitional justice), as such an assertion would require an analysis of the interplay among broader political and social conditions beyond the scope of this essay.

Nonetheless, it is reasonable to think that identifying and addressing current and potential credibility challenges can increase support for the TJRC. If dissatisfaction about some TJRC office-holders is changing to disaffection towards the institution as a whole, a procedurally transparent replacement of those commissioners whose integrity is in real question may help the project regain its moral authority. While it is impossible for the Commission to please everyone, the language of reconciliation is often invoked in a moral register, and it would seem foundational that the TJRC’s office-holders are held up to the same standards that the people it is created to serve deem appropriate. Procedurally, the TJRC selection committee has the authority under Section 9(2)(b) of the Act to “consider an application for the removal of the chairperson or a commissioner”. To date, there are no reports of the selection committee convening to address these concerns expressed by sections of the population. However, if compelling reasons make a revision to the institutional infrastructure of the TJRC undesirable to policy makers (even after they take into account the potential costs of embarking on the institution without moral support), then alternative avenues should be explored through which to give the relevant constituencies opportunities to shape and “own” the TJRC process. As experts of Liberia point out, the “new” Liberian TRC had to endure further credibility challenges in the course of its work, including disputes over how to hold public hearings, disagreements over which victims would testify, and tense relationships between the commissioners and their advisors. The Kenyan TJRC can anticipate these potential future challenges to its credibility and establish appropriate participatory procedures. For instance, the TJRC could consult with victims on different ways to conduct public hearings, as models range from Ghana (formal court-room reproductions where perpetrators could cross-examine victims) to Peru (more informal sessions where victims could narrate their stories as they pleased). Finally, for Kenyans more broadly, the cost of supporting the TJRC may be perceived differently (and the flexible meaning of reconciliation adjusted accordingly) if other judicial measures are also implemented.

Further Reading:

Beetham, D. (1991). The legitimation of power. Macmillan.

Subotic, J. (2007). Hijacked Justice: Domestic Use of International Norms. University of Wisconsin–Madison.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN

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). Given the state of the debate about whether non-prosecutorial measures can demonstrate “an intent to bring the person concerned to justice”, and the increasing delegitimisation of the TJRC, the commission is unlikely to be seen as fulfilling the complementarity criteria of the ICC.

The debate about “credible” independent processes that “meet international standards” that has dominated Kenyan discussions about accountability options is in part a debate about complementarity – the idea in the Preamble of the Rome Statute of the ICC that the Court “shall be complementary to national criminal jurisdictions”. The complementarity principle preserves the primacy of domestic prosecutions for those responsible for international crimes. Assuming “sufficient gravity” (an important consideration I do not address in this essay), the Court can only act under Article 17(1)(a) if Kenya is “unwilling or unable genuinely to carry out the investigation or prosecution”. Unwillingness is defined in Article 17(2) as the initiation of proceedings created “for the purpose of shielding the person concerned from criminal responsibility”, or in a context where proceedings are unduly delayed or conducted in a manner “inconsistent with an intent to bring the person concerned to justice”. Inability is defined under Article 17(3) to include a lack of institutional capacity, as well as the “availability” of the national judicial system – in the sense of enabling legislation, for instance – to carry out proceedings.

Does the TJRC meet the complementarity criteria? Put differently, can a non-prosecutorial mechanism conduct “genuine” investigations with the “intent to bring the person concerned to justice”?

The dominant perspective is that non-criminal proceedings generally are inconsistent with the complementarity doctrine. Under Article 17(1)(a), a country can argue that a case is inadmissible before the ICC on the grounds that “the case is being investigated or prosecuted by a state which has jurisdiction over it”. As Scharf offers, because the Article “requires an investigation but does not specify a criminal investigation…a state could argue that a truth commission (especially one modeled on that of South Africa) constitutes a genuine investigation” (Scharf 1999:525). However, he proceeds to show why this could be a difficult line of argument to sustain, particularly because the Article further states that investigations should be consistent with “an intent to bring the person concerned to justice”, and this phrase can be interpreted as requiring criminal proceedings. Similarly, under Article 20 which provides that a person who has been “tried by another court” shall not appear before the ICC, a country can argue that a person who has appeared before a truth commission is ineligible to stand before the Court. However, this argument would still have to demonstrate an intention to bring a person to justice. Besides, a truth commission is not a “court” (Scharf, 1999:525-526).

The view that prosecution is essential to complementarity was held by many in the anti-impunity community in the situation of Northern Uganda. Here, it is worth noting the exchange between those who suggested that in a context where prosecutions were thought to have the potential to derail a critical peace process, the Court could, within its complementarity provisions, defer to alternative justice processes, and those who argued that such a deferral would amount to an abdication of the Court”s core obligation to prosecute (a similarly rich discussion continues here and here with reference to Darfur). While this discussion was mostly appealing to prosecutorial discretion under Article 53, where the Prosecutor can determine to halt proceedings if they would not serve “the interests of justice”, the views expressed against non-prosecutorial measures were general to the conduct of the Court. According to Human Rights Watch (2005):

the prosecutor may not fail to initiate an investigation…because of developments at that national level such as truth commissions, national amnesties, or the implementation of traditional reconciliation methods, or because of concerns regarding an ongoing peace process.

Leading advocacy organisations (including Amnesty International, Human Rights Watch) argued that to make determinations about the merits and legitimacy of alternatives to prosecution would amount to the Prosecutor making a political judgment, which would open the Court to potential manipulation. From this view, the complementarity language of the statute does not distinguish democratically demanded amnesties (such as those of the South African TRC) from the illegitimate amnesty of the Pinochet regime in Chile, viewing them both as unacceptable (Rodman 2009: 103). This position was also confirmed by Judge Richard Goldstone, the former prosecutor at the International Criminal Tribunal for the former Yugoslavia, who argued that if the South African TRC were implemented in this age of the ICC, it would not be acceptable. He argued that countries must prosecute, political feasibility notwithstanding.

Despite the dominance of this narrow view of complementarity, a competing view argues for a role for non-prosecutorial processes in the age of the ICC, and advocates for a broader understanding of the notion. This second view starts from the perspective that the Court was not established to overturn and contradict the decisions of democratic states where, for instance, victims may decide to set up credible non-prosecutorial processes, or, as in South Africa, pursue prosecutions only against those who do not receive amnesty. Further, this argument goes, a case can be made that the “interests of justice” pursued by the Court could be broadened to include the restorative justice pursued by institutions like TRCs by showing that such alternative mechanisms are not “just a way of protecting the guilty from prosecution” (Roche 2005:568-569), but rather valid avenues through which to address calls for truth, reparation and reconciliation. Further, given that the participation of perpetrators in TRCs is thought to be critical to the success of these mechanisms, the ICC could target those who have not received amnesty through this process, thereby providing an incentive for such perpetrators to participate in national TRCs. Another suggested approach for collaboration between the ICC and a TRC could be one in which the ICC collaborates with it to address those most responsible for violations (rather than just those who do not receive amnesty). Here, cooperation of the perpetrator with the TRC “could be a mitigating factor taken into account by the ICC Judges in sentencing” (Roche 2005: 575).

The call for collaboration between the ICC and legitimate non-prosecutorial measures positions itself as being pragmatic and principled. The argument is pragmatic in the sense that in a context of scarce resources, it would suggest that collaborative relationships with mechanisms like TRCs can be useful in ensuring as many victims as demand alternative processes can receive them. Further, in a context where scholars on the ICC are suggesting that the Court should offer assistance to states to carry out their domestic prosecutions in a policy of “proactive complementarity” (Burke-White, 2008) even where it is clear that national processes in many resource-poor countries with weak justice systems will most likely fall short of “international standards”, this broader conceptualisation of complementarity may be timely. The argument also tries to shield itself against attacks of politicisation by proposing a principled process of determining legitimate non-prosecutorial processes: those with the broadest support possible in a society, and that are inclusive, supportive of victims, and complementary to other political reforms. Further, it suggests, credible alternatives are those whose merits would be vouched for by the broadest level of civil society (Roche 2005: 574-579).

The debate between the narrow and broader interpretation of complementarity continues part of a broader ongoing discussion about politics and the ICC: while the Prosecutor remains firm that his duty is to “apply the law without political considerations”, one set of critics tell him that this position ranges from unhelpful to dangerous, and another set argue not all non-prosecution amounts to a breach of international legal obligation. But serious shortcomings remain unaddressed in both the narrow and broader view of complementarity – the former can be antidemocratic, while the latter can underestimate the agenda-setting power of international civil society in supplying empirically unproven “universal” models to local communities.

Nonetheless, even if the Court were to find a symbiotic relationship with institutions like TRCs, the Kenyan TJRC in its current form would be unlikely to be meet the proposed principled criteria in the broader interpretation, in part because those whose support is necessary for the TJRC to be legitimate – mainly the victims and civil society – have withdrawn their support from the institution. Gravity aside, an increasingly delegitimised, non-prosecutorial mechanism is unlikely to keep the ICC away; domestic prosecutions can.

*Lydiah Kemunto Bosire is reading for her doctorate in politics at the University of Oxford, with a research focus on transitional justice in Kenya and Uganda. She is also the co-founder of Oxford Transitional Jusitice Research (OTJR). Previously, she worked at the International Center for Transitional Justice, the WHO and the UN.

Further Reading

Human Rights Watch. 2005. The Meaning of “The Interests of Justice” in Article 53 of the Rome Statute. Human Rights Watch, June.
Online: www.iccnow.org/documents/HRWInterestsOfJusticeJun2005.pdf.

Burke-White, W. 2008. Proactive complementarity: The International Criminal Court and national courts in the Rome system of international justice. Harvard International Law Journal.

Roche, D. 2005. Truth Commission Amnesties and the International Criminal Court. British Journal of Criminology 45, no. 4 : 565-581.

Rodman, K.A. 2009. Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court. Leiden Journal of International Law 22, no. 01: 99-126.

Scharf, M. P. 1999. The Amnesty Exception to the Jurisdiction of the International Criminal Court. Cornell International Law Journal 32: 507.

There seems to be consensus around the need to deal with injustices– gross human rights violations, economic crimes and abuse of power –perpetrated in Kenya over the last 35 years. However, Kenya lacks a coherent policy on the broader question of transitional justice: which institutions should be used (Special Tribunal for Kenya (1), Truth, Justice and Reconciliation Commission(2) [TJRC] or criminal courts), how these mechanisms should be deployed, how they would relate to each other, and how such mechanisms would fit within the ongoing constitutional and institutional reforms proposed under Agenda Four of the Kenya National Dialogue and Reconciliation (KNDR) process that produced the current Government of National Unity (GNU) (3).

While Agenda Four of the KNDR (4) prescribes several measures including broad institutional reforms, transparency accountability and ending impunity – measures usually associated with transitional justice approaches in their broadest conception – it cannot be regarded as a transitional justice policy. Other than the resolution adopted by the KNDR for the establishment of a TJRC that proscribes the granting of amnesty for crimes against humanity and attempts to enunciate broad ‘principles’ on the operation of the TJRC (5), Agenda Four lacks specificity on any of the crucial questions relating to transitional justice. Further, since the decisions to establish a Special Tribunal and the TJRC were taken, the government has made no attempt to enunciate such a framework. While recent crisis talks in the Cabinet on the role of the International Criminal Court (ICC) yielded varying suggestions from different Ministers on what should be done (6), it was not intended as a policy forum. The President convened the meeting in order to fashion a response to the handing over to the ICC Prosecutor of the list of key suspects (prepared by the Commission on Post Electoral Violence) by Kofi Annan, the mediator of the KNDR. The tense and rancorous exchanges reported to have happened in the meeting were perhaps not conducive to sober reflection.

Moreover, the sharp disagreements within Cabinet over how to deal with post-electoral criminality have not been conducive to a coherent approach. Nowhere is this more evident than in the government’s approaches to the Special Tribunal and the TJRC. Government démarches relating to the two mechanisms seem to proceed in isolation from each other. As a result, discussions on the questions of transitional justice itself remain largely impoverished, focusing – even in this case indecisively – on only on a select number of politically contentious issues such as amnesty and the ICC, and exclude ‘alternative’ mechanisms such as ‘ordinary’ criminal courts.

A number of reasons can be proffered for the lack of an official transitional justice policy – in whatever form – and the resultant incoherence in approach.

First, the decisions to establish both mechanisms were taken in the middle of a national crisis. The immediate purpose of the KNDR was to bring an end to violence and to install a broad-based GNU. Such circumstances were clearly not conducive to a reasoned articulation of a transitional justice policy. Second, the debate on transitional justice – to the extent that it exists within government – is taking place within a polarized political environment. Beyond the convergence of views on the need to address past injustices, the GNU partners do not seem to agree on much. As elaborated in the discussion of various mechanisms, there are competing notions of justice that dictate different approaches. Lack of agreement also stems from the fact that the President, the Prime Minister and those who readily do their bidding are engaged in a vicious power struggle. For the President, who has previously enjoyed unfettered executive power inherited under a draconian constitution, the idea of sharing such power does not seem to have sat well with him. For his part, the Prime Minister has been keen to assert executive power – albeit for the most part ill defined (7) – vested in the new office by the national accord that created the GNU. In an event that underscored the nature of these struggles in government, in April 2009, the Speaker of Parliament was forced to enter the fray by deciding in a historic ruling on whether the President was entitled to appoint the powerful Leader of Government Business in Parliament (which comes with potential control over the government’s legislative and reform agenda) without consulting the Prime Minister in terms of the KNDR Act; and whether in fact the Prime Minister, rather then the Vice President (affiliated to the Party of National Unity [PNU]) should assume that position (8).

Third, the apparent attempt by one side of the government – the PNU – to shape the course of transitional justice seems to have reduced the chances of what should be a cooperative effort, especially in the context of a government of national unity (9). From the author’s discussions with a number of stakeholders, it emerged that the then Minister of Justice, Ms Martha Karua (PNU), had drafted the first TJRC Bill without sufficiently involving coalition partners, civil society or other key stakeholders. Heated parliamentary debates relating to key provisions of the bill reflected dissatisfaction with this approach. The few members of civil society who were contacted by the author suggest that it was too late for them to provide any input, having been given less than two days to respond before the bill was presented to Parliament (10). Similarly, the defeat in Parliament of the bill aimed at entrenching the Special Tribunal law in the Constitution can be attributed in part to the failure by government to engage with relevant actors, including MPs across the political party divide. Some MPs have suggested that they did not have enough time to familiarize themselves with the contents and voted against the bill because of their suspicion of the government’s true intentions (11). It is noteworthy that President Kibaki and Prime Minister Odinga have lobbied their constituencies in Parliament to pass the law after the two principals came under sustained pressure from international actors. No sooner had President Kibaki named the commissioners and chair of the TJRC (22 July 2009) than they (the commission and its chair) came under attack from various quarters. The credibility crisis (12) that has engulfed the TJRC reflects at least one of the pitfalls of a government-driven transitional justice process (real or perceived): the possibility that the institution could lack total legitimacy, a necessary ingredient for a successful transitional justice process.

Fourth, while most Kenyans want justice in one form or another, an interesting dynamic has developed in the context of ethnic-based contestation within the current political sphere (13). Those clamouring for justice on occasion recede into ethnic constituencies where action against particular individuals is invariably seen as a witch-hunt. Since questions of accountability seem inextricably linked to political succession and reorganization of the state, at a certain level, justice has an ethnic dimension whose contours must be internalized and acknowledged. Few can deny that this renders the task at hand even more complex and difficult to realize. For one, the result of this ethnic dimension is the dilution of civil society pressure on government and subsequent lack of incentive for timely and appropriate government action to drive accountability processes forward.

Apart from the lack of agreement on how the past should be reopened for scrutiny, and whether any penal consequences should apply as one of the prescriptions, post-Kibaki succession scenarios and broader issues of institutional and constitutional reforms also underpin the actions of various actors in the transitional justice debate. When one dissects the transitional justice debate – inseparable from the wider context of constitutional and institutional reforms –it emerges that transitional justice questions invariably rally ‘reformist forces’ against an illiberal, pro-status quogroup that does not favour the dissolution of the oppressive post-independence political and economic order that has operated to the benefit of a few (14). The forces opposed to institutional reforms seem by extension inimical to any accountability process that would open and in a transparent manner scrutinise the numerous closets of historical injustice. Together with this historical legacy, the dynamics of a coalition government and succession battles that come with it are defining not only the ‘kind’ of justice that Kenya might pursue but also the roles of various actors in that process.

* Godfrey M Musila is a PhD Candidate (International Criminal Law and Justice), Oliver Schreiner School of Law, University of the Witwatersrand, Johannesburg and a Senior Researcher, International Crime in Africa Programme at the Institute for Security Studies, Pretoria. He has authored two articles on the Kenyan transitional justice process (African Renaissance Journal Vol.5 No.1 2008 and South African Year Book of International Affairs 2008/2009). Sections of this Working Paper are drawn from his forthcoming article ‘Options for Transitional Justice in Kenya: autonomy and the challenge of external prescriptions’ International Journal of Transitional Justice (Oct 2009).

Notes

1. Recommended to try those who bear the greatest responsibility for alleged crimes against humanity committed between 27 Dec 2007 and 28 February 2008 by the Commission of Inquiry into Post Electoral Violence (Waki Commission) appointed by President Kibaki. See Government of Kenya, Report of the Commission of Inquiry into Post Electoral Violence (2008).

2. To be established in terms of the Truth Justice and Reconciliation Act 2008.

3. For the National Accord and Reconciliation Act 2008, and other documentation related to the Kenya National Dialogue and Reconciliation, see <http://www.dialoguekenya.org/agreements.aspx>

4. Agenda Four of the National Dialogue and Reconciliation process relates to ‘ Long-Term Issues and Solutions’

5. See Kenyan National Dialogue and Reconciliation Truth, Justice and Reconciliation Commission. The ‘principles’ are: independence [of TJRC]; fair and balanced inquiry; [grant of] appropriate powers; full cooperation [from government and all concerned]; strong financial support [from government and donors].

6. Cabinet Meeting, July 14 2009. Its is reported that Cabinet is divided into various camps: between those who favour prosecutions (before the ICC, the Special Court or before national courts); and those who oppose prosecutions and favour an expanded role for the TJRC to deal with post-electoral crimes.

7. S 4 (a) of the National Dialogue and Reconciliation Act, 2008 provides, without elaboration that the PM ‘shall have authority to coordinate and supervise the execution of functions and affairs of the Government of Kenya including those of Ministries’. While this suggests a parliamentary system in which the PM should run government while the President maintains a backseat, the NDR Act leaves intact other powers of the President that undercut those vested in the PM. While ODM has favoured this wide construction, PNU has sought to limit the PM’s functions as much as possible. The struggle has pitted the PM and the head of the Civil Service and Secretary to the Cabinet (a Presidential appointee, who under the old dispensation supervises ministries), with the latter accused of undermining the PM.

8. See Decision of the Speaker of Parliament on the Interpretation of the Constitution and the National Dialogue and Reconciliation Act (Speakers Communication’) of April 28 2009 available at<http://www.bunge.go.ke/parliament/> (accessed on 12 July 2008).

9. A number of civil society representatives working on issues of justice and victims had expressed concern over their exclusion from the legislative process, both for the Special Tribunal Bill and TJRC Bill. At the height of controversy over the amnesty question (against which the Justice Minister Martha Karua, (PNU), stood vehemently opposed), it emerged that the ODM – supposedly an equal partner in terms of the National Accord – had not been involved in the formulation of the draft law.

10. See for instance, Amnesty International, ‘Concerns about the Truth Justice and Reconciliation Bill’ May 21, 2008 at 11-12 raising concerns over limited CSO involvement in the preparation of the TJRC Bill.

11. Standard Reporter ‘Bill: What went wrong with the big guns?’ The Standard (Nairobi) February 15 2009.

12. See author’s comments on this issue at: http://rethinkingjustice.blogspot.com/

13. On the lingering role of ethnicity in the political discourse in Kenya see various in George Wachira (ed) in Ethnicity, Human Rights and Constitutionalism in Africa (2008).

14. On historical injustice and the nature of the post-independence state see generally See generally Makau Mutua, Human Rights and State Despotism in Kenya: Institutional Problems, 41 Afr Today 5 0 (1994).and Republic of Kenya, Report of the Commission of Inquiry Into Land Clashes (Akiwumi Report), 1999.

We welcome links to this article and comments. Reproduction or redistribution of the above text requires the prior consent of the original source. Please contact lydiah-kemunto.bosire@politics.ox.ac.uk

The Kenyan Truth, Justice and Reconciliation Commission (TJRC) is mandated to enquire into human rights violations, including community displacements, settlements, evictions, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. access to land is often cited as one of the key structural causes of violence in Kenya. However, political figures have manipulated and misrepresented the ‘land issue’ in the country, to the extent that it often seems to be an excuse, rather than a valid grievance. How should the TJRC address the land issue, which is so easily instrumentalized and so deeply linked to problematic conceptions of ethnicity? In order to answer this question, we first have to ask: why is the land issue relevant today?

The British colonial regime in Kenya caused significant disruptions to landholding patterns in many parts of the country, which still reverberate today, at the level of ‘high politics’ as well as ‘folk politics’. Land held under customary tenure by Kenyan communities was treated as ‘vacant’ by the colonial regime and appropriated for ranching and farming by white settlers. Even when the colonial government created ‘native reserves,’ land remained under the control of the Crown and hence vulnerable to alienation by the state at any time. Large parts of the central highlands, historically home to the Kikuyu and other communities, were appropriated for settler agriculture. Former inhabitants of these areas were forced into farm labour elsewhere in the country. Parts of the Rift Valley were also greatly affected. During the war of resistance, the members of the Land and Freedom Army fought for a restoration of land rights as part of a wider liberation from colonialism.

Under the terms of the independence agreement negotiated at Lancaster House, the administration of President Kenyatta pledged to respect ‘private property’, without regard to the ways in which land had been acquired. Rather than returning the areas appropriated by white settlers to customary tenure, the government accepted a ‘willing buyer, willing seller’ approach. Former farm workers, many of them Kikuyu, took advantage of the land-buying schemes offered by President Kenyatta to purchase plots in areas which remain a focus of discontent and periodic violence today.

Like the colonial Governor before him, the President held great powers over land distribution, with few checks and balances. Land owned under custom remains the private property of the government, and pastoralist land is supposedly held ‘in trust’ for local communities by the government. However, in practice Trustland is often sold-off, whether or not the sale is in the public interest. Official policy has always been to replace customary tenure with a freehold title system. This has left many communities, particularly pastoral groups in the Rift Valley, feeling that land customarily held ‘in common’ by their communities was vulnerable to alienation. Public land has been illegally distributed by the political elite in order buy the loyalties of their ‘clients’. Prominent families amassed huge farms and ranches under both Kenyatta and Moi. Government resettlement schemes were affected by corruption, leading to further inequality in landholdings. More generally, corruption became entrenched in the surveying and cadastral services, casting doubt on the validity of titles and creating serious land tenure insecurity which persists today.

Grievances over land access have regularly been manipulated by politicians in order to foment political violence. In 1992, KANU politicians organized violence against Kikuyu communities in ethnically-mixed areas to displace potential opposition voters. Some 1500 people died in 1992. Land-related grievances were used to mobilize mobs and justify violence, often wrongly described in the media as ‘land clashes’. Following incitement by KANU politicians during the 1997 elections, hundreds of thousands of people were forced from their homes. However, little was done to find long-term solutions to the resulting internal displacement problem. The Akiwumi Commission of enquiry into the violence recommended that the role of specific individual administrative and political figures in planning the killings be investigated. However, these recommendations were ignored.

Land issues are multidimensional: at the micro level land is an economic asset which benefits individuals, and land access becomes an increasingly important political issue as land-scarcity increases. At the meso level it represents an intangible ‘community territory,’ which perhaps explains why major land-owners are able to publicly articulate ‘communal’ grievances over land. It is undeniably linked with the calls for Majimbo, discussed by Daniel Waweru in his paper. However, it is not just about ’sons of the soil’ controlling land. When land uses change – for example, when pastureland is converted to farmland, or vice-versa – there are real social and environmental repercussions for neighbouring communities.

So, land issues are clearly important, in the sense that they are both deeply-felt, and have been used to mobilize violence. How then has the government of Kenya addressed these problems? The National Rainbow Coalition (NARC) came into power on an anti-corruption platform. The new government expressed early support for a truth commission; however, it failed to establish one. Some of the alleged perpetrators of violence in the 1990s were incorporated into the NARC government. NARC also failed to adequately provide for those who had been displaced in political violence, and who continued to live in terrible conditions. The government created a Task Force on Displaced People, but its work has been very heavily criticized. President Kibaki’s government did establish the ‘Ndung’u’ Commission’ into illegal allocation of land, which recommended that ultimate responsibility for land rest with a National Land Commission, rather than the president, and that a review of land titles be initiated. The findings of the Commission were largely welcomed by Kenyan land specialists. However, few of the report’s recommendations were implemented. While the fundamental and systemic aspects of the land problems identified by the Commission’s report have been left to fester, evictions of communities from ‘gazetted’ (protected) forest areas such as the Mau Forest and Mt. Elgon Forest have been implemented with excess force and without resettlement of many of those evicted. In some cases, evictions exacerbated local ethnic and political tensions. Gains from illegal land acquisition have since been utilized to fund election-related violence.

The government also formed a Committee of Eminent Persons in 2006 to report on the key concerns of Kenyans and their implications for constitutional reform. This report was written, but has never been released.

To date, the establishment of ad hoc commissions of enquiry appear to have served as useful diversions, tying up the resources of government and other stakeholders in the development of recommendations which are rarely implemented. Despite these disappointments, the existence of those reports in the public domain does represent a basis for advocacy and debate. The issues are out in the open, and the major land-grabbers and the flashpoints of conflict are known.

Therefore, if the TJRC is to address land issues, will it just produce more empty recommendations, destined to be ignored? Several truth commissions in other parts of the world, such as Timor-Leste, have identified land-related inequality and human rights abuses as a root cause of conflict, but their calls for further action have not always been implemented. Those implicated in land-grabbing and other injustices are typically amongst the political elite, and able to block reforms.

However, despite Kenya’s history of ‘paper tiger’ commissions, there are glimmers of hope that the TJRC could go further than that: First, the national Land Policy, drafted in 2006, was finally approved in June 2009. The policy is seen by many as a progressive document providing protection for those communities using land under communal tenure systems, and calls for compensation and reparation for historical injustices. The country now has a practical framework for the implementation of the TJRC’s recommendations regarding land. Second, the Chair of the TJRC, Ambassador Bethuel Kiplagat, is an expert on the causes of conflict in Africa and is no doubt well-aware of the socio-economic dimensions of violence in Kenya, including land issues. He should be able to guide the TJRC towards the development of practical and far-reaching recommendations. Third, there are a sufficient number of skilled people, in government and civil society, who are committed to land tenure reforms. They should ensure that the TJRC does not turn into a gravy train for land experts, but results in clear outcomes. Fourth, it is reasonable to expect that international donors, who have supported the Land Policy development process, will use their leverage to ensure that land reform happens. Donors were united in the face of the 2008 violence; they should unite on the land issue, and refrain from letting their own ideological positions get in the way of Kenya’s much-needed reforms.

There are compelling reasons to address the land issue in a comprehensive way. Reform will reduce popular grievances, and take away one of the most effective rallying cries available to those inciting violence. Seizing ‘grabbed’ land will remove a source of revenue from corrupt politicians and businessmen who are willing to pay unemployed youth to engage in violence. Punishing those who have committed land-related crimes will be a concrete step towards reinforcing the rule of law for all and doing justice on behalf of all those who have struggled, since the pre-independence days of the Land and Freedom Army, to claim their rights. Applying legal sanctions against the major land-grabbers will also defuse the perceived ‘ethnic’ aspects of the land question. Those guilty of injustices around land are not, after all, entire ethnic communities, but specific members of the elite who abuse their economic and political power. The TJRC should prevent them from doing so, through recommending effective land tenure reforms.

*Chris Huggins was based in Kenya from 1998-2005. He is a specialist in conflicts over land and natural resources, particularly in Africa, and a PhD candidate at Carleton University, Ottawa. He recently contributed a chapter on “Linking Broad Constellations of Ideas: Transitional Justice, Land Tenure Reform, and Development” to Pablo de Greiff and Roger Duthie, (eds), Transitional Justice and Development: Making Connections (New York: Social Science Research Council, 2009)”

References

Commission for Reception, Truth and Reconciliation in East Timor (CAVR) (2005) Chega! The Report of the Commission for Reception, Truth and Reconciliation in East Timor. Dili: CAVR. Available online at http://www.cavr-timorleste.org/chegaFiles/finalReportEng/07.9-Economic-and-Social-Rights.pdf

Kamungi, P. and J. M. Klopp. (2007). “Failure to protect: Lessons fromKenya ’s IDP network”, Forced Migration Review, 28. 52-53 Available online at http://www.fmreview.org/FMRpdfs/FMR28/29.pdf

Republic of Kenya (2009) National Land Policy. Nairobi: Ministry of Lands. Draft version available online at www.ilegkenya.org/pubs/docs/DraftNationalLandPolicy.pdf

Southall, R. (2005) ‘The Ndungu Report: Land & Graft in Kenya”. Review of African Political Economy, , March 2005, pp.142-51. Available online at .oxfam.org.uk/resources/learning/landrights/downloads/ ndungu_report_land_graft.rtf

Wakhungu, J., and E. Nyukuri and Huggins, C. (2008) Land Tenure and Violent Conflict in Kenya: Consultative Conference Proceedings Report. Nairobi: ACTS Press. Available online at www.landcoalition.org/pdf/ACTS_LandConflict_report.pdf

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