INTRODUCTION

Transitional Justice has engendered much debate amongst scholars and practitioners who question the meaning of ‘transition’, ‘justice’, ‘reconciliation’ and how these may be achieved, and whether particular outcomes can be achieved without recourse to popular mechanisms (Wachira, Kamungi and Sillah, 2014; Van der Merwe and Chapman 2008). The question of ‘justice’ has spawned debate about whether or not to punish perpetrators in post-conflict societies, the distinction between and comparative advantage of retributive, restorative, distributive or procedural justice. These debates are couched in the language of human rights or reconciliation, reflecting post-conflict societies’ struggles to overcome the legacy of violence and meet the needs of victims, offenders, and the wider community. Transitional justice processes tend to focus on victims and the imperative to right past wrongs. Justice, in this sense, is variously understood as criminal trials for perpetrators, and fulfilling victims’ right to truth and reparations. Whether to pursue these goals through traditional mechanisms of modern judicial processes elicits concern over their respective inadequacies.

JUSTICE FOR VICTIMS THROUGH PROSECUTION OF PERPETRATORS

Ideally, transitional justice requires that human rights violations be submitted to an indiscriminate application of human rights law. Criminal prosecution is upheld for its consistency with international human rights law, notably the obligation to punish crime (Haden, 2004). Criminal justice is believed to have intrinsic worth and is regarded as a basic ingredient of a stable democracy. It is argued that trials establish a direct responsibility for wrongs committed and, when they result in convictions, clearly identify the perpetrators. Trials emphasize accountability (Rwelamira and Werle, 2005). They are believed to deter future atrocities, although some critics argue that there is no empirical evidence to support this claim (Fatah, 2007). They are also thought to satisfy the need of victims for the full restoration of dignity (Centre for Conflict Resolution, 2007). In situations where atrocities were committed during divisive conflict, it is thought that prosecutions help to individualize guilt and responsibility, thereby reducing the possibility that the aggrieved continue to hold entire responsible for their suffering.

Conversely, prosecutions have been found to be impractical and inadequate in contexts of transition. They are lengthy and costly, and therefore unattractive for societies needing to move on quickly and prioritize reconstruction and reconciliation. At the conclusion of a war, it is impossible to prosecute all offenders (Hayner, 2002). Prosecuting some while leaving others can fuel grievance over perceived victimization or discrimination, regardless of the validity of criteria used to select who to prosecute. In Kenya, for instance, claims that selected suspects ‘were not the real perpetrators’ and that the list ‘was not representative enough’ triggered political discourse which ultimately attracted public sympathy to the suspects and obscured the quest for justice. Related to this question is the issue of scale and proportion: how many people can reasonably and practically be prosecuted for violations? (Neier, 1998). This is a critical question where violations were not perpetrated exclusively by the state and organized armed groups, but by the ordinary populace as well, where ‘mobs’ participate in inter-group violence or lynching. This form of societal complicity, or ‘popular agency’ (Mamdani, 1998:12), makes it difficult to isolate individual perpetrators. In South Africa, as in Rwanda, the participation of large numbers of community members led to perceptions of community guilt, where actions of a group member were attributed to all members of that group. In Rwanda, it created the perception that all Tutsi were victims, and in South Africa, that all whites were responsible for crimes committed during apartheid. In Cote d’Ivoire, DRC and Sierra Leone, violations by state security forces, ‘private armies’, vigilantes, criminal gangs, rebel groups, and ‘angry members of the public’ blurred the line between law enforcement, on the one hand, and political and criminal violence, on the other, and obscured distinctions between vertical and horizontal accountability. Because of the multiplicity of actors and contexts within which violations take place, prosecution alone as a means to justice is clearly insufficient.

In post-conflict societies, most institutions, including the judiciary, are dysfunctional, weak, and inept (Miano, 2004). A lack of capacity to conduct trials within the limited transition period and the absence of public trust and confidence render widespread prosecution an inappropriate tool for moving a nation forward. Judicial and other criminal justice institutions would first need to be reformed before undertaking credible prosecutions. Such reforms take time and resources, which may not be prioritized by new regimes seeking to consolidate their hold on power and reluctant to make bold changes.

Some scholars argue that victims are the main losers in punitive systems because criminal trials focus almost exclusively on perpetrators in guilt-seeking procedures that do not respond to the harm and injury suffered by the victim (Cragg, 2000). According to Fatah, “[T]he offender gets punishment; the victim gets nothing.”(Fatah, 2000:6). Moreover, some argue prosecution detracts from the reconciliation agenda and creates conditions for revenge and cycles of violence (Biggar, 2001).[1] From this perspective, justice should not be about assigning rewards and punishments but about seeking to do what is right in the circumstances and repairing the harm caused by criminal acts in order to restore balance in a community (Kisiangani, 2007).

Besides large numbers of perpetrators and institutional incapacity, the quest for justice can be hampered by rules of evidence or evidentiary bar. Lack of sufficient information and the demands of burden of proof can hinder the admissibility of available evidence and affect the outcome of important cases. For example, cases related to sexual and gender-based violence may be difficult to prove, particularly when they have occurred in a context of violent conflict or war where perpetrators are strangers and where no functioning institutions provide medical or legal records. Moreover, stigma and ostracism may discourage victims of SGBV from reporting or seeking redress. Passage of time makes it progressively difficult to gather sufficient evidence as memories fade or where key witnesses have died. In other situations, the willingness by witnesses to give testimony may be compromised by fear of reprisal or feelings of solidarity with the accused.

In current practice, the number of persons to be prosecuted is managed by focusing on a few powerful leaders who directed, funded or oversaw acts of violence. The International Criminal Court criterion on ‘those who bear the greatest responsibility’ as used in various situations in Africa holds a few top leaders responsible the crimes of low- and middle-level perpetrators. While this approach contributes to the fight against impunity among the top political leadership, it is perceived as adequately representing local people’s understanding of who the perpetrators are: some felt that persons who carried out actual violations should be held accountable for their actions, not just, or even necessarily, the persons at whose behest they claimed to have acted (Karuti and Kamungi, 2013; Wachira, Kamungi and Sillah, 2014). The approach may also be insufficient where there is no centrally organized or recognized leadership in factional violence.

The quest for justice for past wrongs is often hindered by restrictions on which violations to investigate and how far back to look into history. Across Africa, Transitional justice mechanisms tend to restrict themselves to uncontested periods and rarely probe into complex injustices, such as colonial-era violations. Even though colonial era violations in Kenya are the subject of several court cases, few other countries have sought to inquire into the remote past. Moreover, the British government has continued to object to these cases on the grounds that they are time-barred. However, avoiding historical events has tended to restrict comprehensive discussion of structural injustices that underlie contemporary divisions and violent conflicts.

JUSTICE FOR VICTIMS THROUGH REPARATIONS AND RESTITUTION PROGRAMMES

Reparations programmes are the material or symbolic form of recognition owed to victims of human rights violations. They are a political statement of recognition of unrecognized violations, acknowledgement of the suffering of victims, and a commitment redress wrongs to promote individual and collective healing (van der Merwe, 2004). Reparation can be achieved through material and non-material means, and be directed at individuals or groups. Reparations take different forms including rehabilitation, monetary compensation, restitution of property, goods and services, and apologies. Restitution programmes are instituted to help victims manage their loss by trying to return them to their situation before the violation occurred. To victims, reparations are the clearest and most direct indicator of a government’s willingness and commitment to address their plight: they are designed to ‘do something’ to redress the loss or harm suffered by victims. The direct and usually individualised benefit makes reparations one of the most victim-responsive features of transitional justice processes. Reparations are recognized as a right in international humanitarian law (REDRESS, 2003) and regional instruments such as the Nairobi Declaration.

The reparations question in transitional justice is often complex and controversial. The notion of reparations has multiple meanings, political and cultural underpinnings, and involves a sometimes contentious process of determining liability and categories of harms to be redressed. In context where the state is responsible for violations, it may be difficult to get official acknowledgment and apology. In situation where there are overlaps between victims and perpetrators over historical periods, the process of determining who is wrong or wronged, or who pays and receives the reparations can become a difficult and emotive issue. Considering these sensitivities, de Grieff (2009) suggests that reparations programmes should take into account four elements: scope, comprehensiveness, complexity and coherence. By scope he means for a reparations programme to be complete, it must not isolate or exclude any victim that suffered the particular violations under consideration, while Comprehensiveness refers to the number of distinct harms or types of violations that are ‘compensatable’. Complexity refers to the different forms that reparation efforts may take, for example from simple, one-off monetary payment, to a combination of staggered monetary payment, truth-telling, apology, health insurance, education support etc. The more complex a reparations programme, the more likely it is to respond to the victims’ needs. Coherence has internal and external dimensions relating to mutual reinforcement. For instance, reparations payments without apology or truth-recovery may be interpreted as inducement to buy victims’ silence, while truth-telling without reparations can be seen as an empty gesture.

Reparations programmes cover only certain types of violations, depending on the negotiated agreement providing for them. Due to a strong focus on human rights violations, matters of civil or political rights such as death, disappearance, and maiming are more likely to attract compensation. Complex violations such as forced displacement, loss of home and property to invaders or arson, land dispossession, rape, politically motivated sacking n from employment, and arbitrary arrests may be more difficult to compensate. This may create the perception that some violations are more important than others. Depending on lobbying and advocacy capacity of victim groups, varying levels of visibility and access to reparations programmes can increase victim competition and unforeseen cleavages. Looking are reparations as a price label for human rights violations can alter the meaning attached to victimhood, and fail to satisfy victims’ and secondary beneficiaries’ needs, interest and expectations. Attempts to match the reparation amount to one’s suffering may reduce the symbolic value of the reparation process and heighten the disappointment should the government fail, or be unable, to pay due to the huge costs of reparations programmes..

Reparations take different forms, ranging from monetary payment, livelihood recovery support, free social services (e.g., education and health), or facilitated access to empowerment programmes. The revelation of truth is regarded as s a form of reparation because many people who did not know what had happened to their loved ones. Symbolic reparations included exhumations and re-burials, issuance of death certificates, and restoration of standing in society through expurgation of criminal records, and revelations of innocence. Access to these truths accompanied by official acknowledgment and apology also constituted a form of reparation. Rehabilitation of community facilities, erection of memorials, official apology, creation of and monuments and statues of national heroes, declaration of national days of remembrance are some of the ways that justice to victims is sought.

JUSTICE FOR PERPETRATORS THROUGH GENERAL OR CONDITIONAL AMNESTY

Amnesty derives from the Greek word amnestia, meaning forgetfulness or oblivion. In application, it means casting into oblivion all that happened in the past for the sake of peace or reconciliation (Borraine, 2007). In legal terms, it denotes an effort by governments to bar criminal prosecutions or civil suits against alleged perpetrators (Mallinder, 2007). This may entail elimination of any record of crime or granting immunity from prosecution. In most cases, amnesties are granted for political reasons – to consolidate peace and encourage a quick end to violence, or satisfy demands of powerful outgoing regimes.

Amnesties are granted, respectively, in diverse contexts:in peace agreements to promote reconciliation, in dictatorial regimes to undermine the opposition, and in new democratic governments to release political prisoners. Whether or not to grant amnesty, either conditional or blanket, remains controversial in countries in transition. Amnesties are often justified by the perceived need to alleviate internal pressure, to protect state agents from prosecution, to promote peace and reconciliation, as part of reparations, to encourage exiles to return, and in adherence to cultural and religious norms (O-Shea, 2004).

Amnesty strategies come in many forms, including immunity from prosecution, limiting investigations to specific periods, conditional ties to full disclosure of truth as in South Africa, or to the return of stolen wealth as demanded by civil society groups in Kenya. The amnesty debate falls within the impunity-versus-justice dilemma, in which those opposed to it argue, generally, that it violates the rights of victims to redress and is inconsistent with the obligation under national and international law to punish perpetrators of human rights violations and other crimes (Orientlicher, 1999). Critics further opine that amnesties subvert the rule of law by allowing certain groups of perpetrators to escape liability. Indeed, amnesties are believed to undermine both specific and general deterrents, and promote cynicism and disillusionment among victims of human rights abuses (Kiai, 2003). They can serve as the basis for disenchanted embarking on acts of private vengeance (Minow, 1998). Amnesties short-circuit mechanisms most societies have established to right wrongs by punishing wrongdoers (Abrams, 2000).

Conditional amnesty in exchange for truth has been promoted in several Truth and Reconciliation processes. According to Hayner, it is permissible if granted to an individual as opposed to groups, and where victims are given opportunity to question or to challenge an individual’s amnesty claim; and where reparation payments are made to victims (Freeman and Heyner, 2003). Writing on South Africa, Boraine states that “the possibility of granting amnesty was based not on a legal or human rights argument, but on a political decision: it was a political compromise. Wachira (2004) also observes that decisions on such questions are determined not so much by their moral appeal or severity of the crimes, but by political interests and strategic actions to advance those interests.

Advances in human rights law, civil society campaigns against impunity and advent of the ICC challenge the granting of blanket amnesties. It is no longer possible to grant amenesty in situations involving serious crimes (Sooka, 2008).

* Prisca Kamungi teaches at the Institute of Diplomacy and International Studies, University of Nairobi.

END NOTES
[1] Biggar, N. (2001) Burying the Past: Making Peace and Doing Justice After Civil Conflict. Washington, DC: Georgetown UP.
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