INTRODUCTION

Kenya has a history of human rights violations, injustices and marginalization. Unfortunately, the perpetrator of the majority of these abuses has been the state. In this regard, transitional justice measures in Kenya are not a mere option, but are in fact necessary towards a bold confrontation of past wrongs and a sign of determination in the long journey towards nation building. While transitional justice mechanisms have been activated in Kenya, it will be argued here that the initial planning of transitional justice measures was thwarted by the fluid and erratic domestic politics which resulted in haphazard timing, sequencing and coordination of difficult activities. This article aims to provoke a serious debate about and around Kenya’s transitional justice process and prospects for the future both, in terms of addressing the past, and ensuring national healing and cohesion.

BACKGROUND TO KENYA’S TRANSITIONAL JUSTICE PROCESS

The path leading to the formation of the Truth, Justice and Reconciliation Commission (TJRC) and the International Criminal Court (ICC) demonstrates Kenya’s checkered political history. Unfortunately, while the formation of the TJRC demonstrated a vigorous attempt to move towards peaceful co-existence, such hopes seem to have been short-lived (Musila, 2009). Already in 2003, the task force led by Makau Mutua found that Kenya needed a TJRC in order to: investigate fairly and systematically the mistakes and atrocities of the past, hold perpetrators accountable, recognize victims and restore their dignity, assess how the state has performed, open discussion and, confront the past. Unfortunately, it was not until a combination of the political crisis of 2007-8, and international mediation that the TJRC was formed. Among the issues which led to the establishment of the TJRC was the concern that since independence, there have been gross human rights, violations, abuse of power, and misuse of public office. There also existed a worry that some of the violations could not be effectively addressed by the courts due to difficult procedures and other hindrances such as a lack of public trust (NPI-Africa & WANEP, 2010b, p. 11).

Apart from the institutional reforms envisioned in the constitution of Kenya (2010), the other major transitional justice mechanisms that have since been activated in Kenya are the truth telling and accountability through the TJRC and the ICC respectively. These two mechanisms should have worked together to render justice to victims of past atrocities. Unfortunately the TJRC Act does not promote or provide any relationship between the TJRC and the ICC (NPI-Africa & WANEP, 2010a, p. 5). This lack of attention in the Act has been one of the key challenges in harmonizing major transitional justice mechanisms in Kenya.

THE TRUTH JUSTICE AND RECONCILIATION COMMISSION (TJRC)

The TJRC was established upon the recommendations of the panel of eminent African personalities that mediated Kenya’s political crisis following the 2007-8 post-election violence. The TJRC was made into law through an Act of Parliament in October 2008 and became fully operational in 2009 upon the swearing in of its commissioners. The commission was armed with the mandate to investigate human rights violations that occurred between December 12, 1963 – when Kenya gained its independence – and February 28, 2008 – when a power sharing agreement was finalized, thus ushering in the grand coalition government. The TJRC mandate included establishing a record of violations of human rights and international humanitarian law and their causes, and determining those responsible for such violations. This stretched to recommending prosecutions and “determining ways and means of redress for victims” (Parliament of Kenya, 2008).

The International Center for Transitional Justice (ICTJ, 2012) reports that, through the Truth Justice and Reconciliation Commission (TJRC), for the first time in Kenya’s history, victims have had a chance to express their opinions on the direction of the country’s unfolding transitional justice process. Political machinations have since dimmed such freedoms.

The TJRC has faced major challenges from its inception. Key elements of the government have on various occasions argued that Kenya should have followed the example of South Africa and prioritized reconciliation over retribution. In other words, the TJRC should be a substitute, rather than a supplement, to a criminal justice process. In general, decision-makers’ support for the TJRC was inspired by narrow interests, such as shielding from justice members of the self-same political elites (Hansen, 2013).

According to Hansen (2013), the same political factors have come into play when looking at the reaction and level of acceptance of the TJRC and its report. These considerations are relevant when attempting to comprehend why a local accountability mechanism is yet to be constituted. This partly explains why the debate about political accountability is still elusive in Kenya. There is a perceivable frame conceptualized and propagated by the political elite aiming at creating unprecedented dichotomy between local and international justice rather than both. The TJRC had a very difficult task in trying to establish an accurate record of past injustices and encouraging reconciliation amongst the ethnically polarised Kenyan society. According to the study by Robins (2011), the TJRC process was paralysed by legitimacy challenges which were capitalised on by some state officials who hampered the peace making initiatives by exacerbating ethnic tensions.

On the positive side, the truth telling process has contributed to easing tensions amongst communities. Of equal importance is that the TJRC process was the first time that a state institution in Kenya has properly acknowledged the gravity of suffering experienced by victims as a result of state impunity, and political impotence to tackle human and economic rights violations (TJRC, 2013). However, a lot is still left to be desired since the TJRC report, just like many other commissions’ reports, has been ‘left to rot’. It will require a concerted long-term effort to achieve the goals of justice and reconciliation and in this respect, the long-term impact of the commission remains to be seen.

According to many scholars and practitioners, one of the main challenges to the TJRC is that its mandate was too large. This made it difficult for the commission to meet its objectives and fulfil its functions within the timeframe and budget (Brown, 2011; Gona, 2010; Harbeson; 2012, p. 27). The time span to be investigated stretched from 1963 to 2008. This is too long a time period (Karanja, 2010, p. 191). Conversely, some critics argue that the seed of systematic abuses were sown during pre-independence period and, by excluding that period from investigation, the TJRC could not get into the bottom of the issues indicated in its mandate (Rutto, 2009).
The wide range of issues expected to be investigated by the TJRC could not allow for serious and conclusive investigations. For example, Amnesty International (2008, p. 10) in assessing the TJRC Bill, assert that “an excessively broad mandate could divert its attention from human rights violations.” In addition, the TJRC duplicated other commissions’ work and was greatly undermined by politics. According to Kisiangani (2008, p. 55), the commission is charged not on its own ability to conduct the hearings and make recommendations but on whether and how the proposed measures are implemented. Although the TJRC’s recommendations are yet to be implemented, it is possible to assess how the powers invested in the TJRC will impact on the process of transition (Kisiangani, 2008, p. 55).

The TJRC Act containsa number of problematic clauses. ItIt states, for example, that the TJRC will make recommendations for amnesty to the Attorney General (AG). The potential for such recommendations overlap, and interfere, with the AG’s constitutional mandate. It is not expressly clear whether the AG can drop prosecutions or ignore the TJRC recommendations altogether (Wainaina, 2009). In addition, the conditions under which amnesty can be granted are largely obscured, thus granting a clear loophole for political manipulation (Wainaina, 2009). It seems that the process of reparations for the victims is confused and unclear. As Amnesty International (2008, p. 9) reports “the law does not include all five forms of reparation to victims, namely: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.” This failure of the TJRC Act to ensure the victim’s right to receive compensation for the damages from identified wrongdoers leaves the recommendations for amnesty as a mechanism for transitional justice in Kenya, in a very awkward position.

The biggest problem in the TJRC act is that it creates a barrier to cooperation with other judicial bodies by refusing to share the content of the perpetrators’ confessions. This makes it harder for other, government and non-government, bodies to pursue reparations. . ,

The importance of truth commissions in the wider process of transitional justice cannot be underestimated. It is integral for the success of the commission that is it led by prominent persons with moral authority. This legitimises the findings and outcomes. In this regard, South Africa and Kenya reflect two sharp contrasts. It is clear that TJRC did not have a personality like South Africa’s Desmond Tutu (Gona, 2010, p. 232). Besides, the controversies surrounding the chairperson of the TJRC, Bethwel Kiplagat, negatively impacted on the commission’s work, reduced its credibility and stirred renewed doubts to the genuineness of Kenya’s truth-seeking process (Grombir, 2012).

The political landscape in Kenya had a large impact on the formation, and implementation of the TJRC. As Musila (2009, p. 464) argues, when there is a broad coalition largely drawn from former foes, and when the pro-status quo group outmatches the reformist and pro-democratic forces, the weaknesses witnessed in the TJRC are always likely to occur.

The truth commission was designed as of instrumental value. The TJRC was designed asa means to explore, and put aside Kenya’s historical injustices and human rights violations (Wainaina, 2009). If this is the case, then the TJRC should form a stepping stone, used to inform other mechanisms of transitional justice in Kenya.

THE INTERNATIONAL CRIMINAL COURT PROCESS

Criminal prosecutions are one of the most frequently used responses to matters of accountability for past violations of human rights. Most scholars are in agreement that trials should be an initial and leading mechanism in post-conflict reconstruction endeavours (Arthur, 2011, p. 296; Sarkin, 2011; Grombir, 2012). Trials act to demarcate “the shift from illegitimate to legitimate rule” (Teitel, 2003, p. 7) and thus draw a thick line between the past, and the present. Asaala (2010) opines that making a clear break with the past requires punishing the crimes committed by previous regimes and introducing new rules, which provide for deterrence of future violations, and helps to rebuild confidence in the capacity of state institutions.

Upon the finalization of the national accord that saw the formation of the grand coalition government established in March 2008, Kenya entered an important phase in its post-colonial history. This moment afforded a rare opportunity for Kenya to face its past and shape its future through transitional justice processes. The Panel of Eminent African Personalities that mediated the Kenyan political crisis, and led by (former UN Secretary General) Kofi Annan, recommended that Kenya should address the historical injustices that were seen as a leading cause for the post-election violence (Kegoro, 2013).

In addition to the formation of the TJRC, Kenya was expected to form a tribunal which would process the criminal activities of the high and mid-level criminal offenses , while the, then yet to be reformed, judiciary was to focus on low level crime. Unfortunately, efforts to create such a tribunal did not succeed. The ICC were thus forced to intervene.

The ICC has greatly shaped the political land scape of Kenya. Many experts have argued the ascendance to power of the ICC was, in part, due to the cases facing Uhuru Kenyatta, the current president, and his deputy William Ruto(Mue, 2013). Since Mr. Kenyatta and Mr. Ruto came to power their cases have been elevated into the regional level. This is because, in keeping with the Rome Statute, the ICC can investigate if, and only if, the state itself is unwilling or unable to do so.. Indeed the ICC intervention in Kenya and the current debate around the Kenyan cases is a prototype of the battle between global forces and local dynamics, a battle whose fate is a subject of much speculation.

While the fate of the Kenya cases in the ICC remains unknown, it is important to note that the ICC has delivered a very limited number of prosecutions.It is often credited for its power as a deterent (Grono & O’Brien, 2008, p. 14). In Sudan for example,the indictment of the state officials including the president and the imposition of the travel ban has succesfully restricted the international movement of the accused. Also, the threat of prosecution from the ICC helped to bring Uganda’s LRA leader Joseph Kony to the negotiating table in 2004 (Grono & O’Brien, 2008, pp. 15-16). Despite these successes, the court has come under sharp criticism and has been accused of being a white man’s tool of oppression targeting Africans and Africa (Gathii, 2011, p. 5). This is a major debate currently underway in Africa especially following the Kenyan cases in The Hague.

The debate concerning domestic and international solutions to local problems is also linked to questions of national sovereignty. In the case of Kenya, the local problems include impunity and lack of accountability. In both cases, Kenyan politics largely shapes the processes (Branch, 2011). According to Musila (2009, p. 459), while the victims are longing for justice, the political elite are keen to plot a route which contains the least threats to their political interests. In this regard, Warigi (2011) argues that the Kenyan cases in the ICC have taken on a political dimension rather than purely seeking justice for the perpetrators and victims. This is highly regrettable but perhaps reflects wider problems with the (unelected) ICC’s legitimacy at a global level.

While the ICC may be subject to international and regional manipulation, it does seem true that it has so far proved to be the only mechanism defying domestic political manipulation (Hansen, 2013).. On the one hand, it is evident that the shadow of the ICC has been an important factor shaping Kenya’s transitional justice process (Sriram & Brown, 2012; Grombir, 2012). On the other hand however, Musila (2009, p. 462) argues the side effect of the ICC’s intervention is that it has focused politicians’ attention to resisting outside interference , at the expense of ensuring reforms and addressing the plight of the victims. This cannot be allowed to continue. There must be a nuanced thinking and serious reflection to address Kenya’s undesirable culture of impunity, speaking to issues of justice/injustice, and ensuring that the plight of the victims is addressed. While the debate around the ICC is important, it cannot be allowedto blur or dullthe pursuit of justice.

WHICH WAY KENYA?

Reparation is very important in the process of transitional justice. But it is in the area of reparations where the dilemma of applying a transitional justice paradigm, detached from the social and economic relationships among citizens, elites, and victims may emerge. This has been the case in Kenya. If the transitional justice mechanisms in Kenya that could lead to reparations become too focused on, say, the violence that followed the 2007 general elections, or abuses committed by police officials against rival ethnic or political groups, then there could be certain dangers (Robins, 2011). For instance, as Grombir (2012) contends, subsequent reparation measures may end up ignoring the causes and consequences of those periods of violence, and episodes of abuse. It is evident that no serious consideration has been directed towards mitigation of such a danger. This has led to further flaws, both perceived and real, in Kenya’s current transitional justice processes. Some commentators have argued that the transitional justice process in Kenya has slowed. The question then should be on how to rekindle the process, while considering the problems raised above.

Failure of the political elite to connect with the concerns of the people is a major challenge to transitional justice mechanisms in Kenya. Truth commissions have an impact on political, economic and social reorganization. International legal regimes like the ICC have strongly reinforced this influence. However, the current crude politicization of the ICC cases in Kenya has left the concerns of the citizens and indeed those of victims and/or survivors untended. This has and could continue to impact negatively on Kenya’s transitional justice processes.

The needs of the victims must play a role, and this should drive the methodology of the process in which victims are asked to define their reparative demands. While many victims know exactly what it is that they require, some may not be able to articulate in their own terms such needs as reparations. For instance a study carried out in Kenya by Robins (2011) asked victims of a wide range of rights violations to articulate their demands for reparations on their own terms. Most of those interviewed were unaware of their right to reparations, and as such victims’ demands are constituted not in terms of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition, but on the basis of perceived needs that emerge from their everyday lives (Robins, 2011, p. 9). This discrepancy between the theoretical understanding of reparations, and ordinary people’s conception of it, is one such complexity that current mechanisms in Kenya must reckon with to ensure success.

CONCLUSION

Kenya’s case is a typical representation of the dilemma that plagues most African countries today. While most of the regimes are beginning to acknowledge, at least in part, that there have been atrocities, human rights abuses and various forms of injustices that need to be addressed, they simultanesouly appear to be perplexed by the demands for peace and justice This is the transitional justice dilemma which the Kenyan state has thus far failed to show it can be trusted to successfully tackle. The role of the civil society and other non-state actors is therefore paramount to bring justice in Kenya.

* Magara Ibrahim Sakawa is a Programs Assistant for the Coalition for Transitional Justice under Human Rights Network, Uganda (HURINET-U).

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