Transitional Justice in Kenya: Government to Deploy Truth Commission and Ordinary Criminal Courts
Since the tragic events that followed the disputed presidential elections on 27 December 2007 in Kenya, debate has been raging on what should be done, and what forms of accountability should be imposed on those responsible for the post-election violence.
Godfrey Musila and Jemima Njeri Kariri, International Crime in Africa Programme, ISS Tshwane (Pretoria)
Since the tragic events that followed the disputed presidential
elections on 27 December 2007 in Kenya, debate has been raging on what
should be done, and what forms of accountability should be imposed on
those responsible for the post-election violence. The Waki Commission on
Post Electoral Violence (Waki Commission) recommended the creation of a
special tribunal to try key suspects for crimes linked to the violence.
A Truth Justice and Reconciliation Commission (TJRC), proposed in a
separate process, has been established to probe human rights violations,
corruption and other economic crimes since 1963, and the post-election
violence could therefore fall within its mandate.
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After many months of speculation on whether the government is committed
to bringing to justice suspected individuals identified by the Waki
Commission, either at home or at the International Criminal Court, the
Government of National Unity (GNU) finally pronounced on the matter on
30 July. President Mwai Kibaki’s announcement, which followed a tense
three weeks during which the cabinet was deadlocked on the way forward,
came after former UN secretary general and mediator in the Kenyan crisis
Kofi Annan’s decision to hand over the list of suspects to the
Prosecutor of the ICC.
According the President’s statement, cabinet was faced with four
options: i) establishing a special tribunal; ii) setting up a special
division of the High Court (Ugandan style); iii) directly referring
suspects to the ICC in The Hague for trial; and iv) deploying ordinary
criminal courts, together with the TJRC. The TJRC’s powers will be
enhanced. The president announced that having considered these options,
as well as the possibility of withdrawal from the Rome Statute, cabinet
resolved not to create a special tribunal but to instead deploy ordinary
criminal courts and to expand the mandate and membership (of the
commissioners) of the newly created TJRC.
The cabinet’s decision to abandon the special tribunal in favour of
ordinary courts and the TJRC raises a number of concerns and questions
about national legal mechanisms for justice and accountability within
the context of international criminal justice. A few of these issues, as
they relate to the Kenyan scenario, are considered here.
First it is unclear from the government’s position whether the TJRC will
also handle post-electoral violence cases especially the most serious
cases that could amount to crimes against humanity. It is not surprising
that the European Union has asked the prime minister and justice
minister for clarification on this issue.
Second, the TJRC Act is already in force. The chairperson, deputy
chairperson and commissioners have been named and sworn in. If the
recent cabinet decision requires changes to strengthen the TJRC, this
will mean legislative amendments, which will have to be passed by a
hostile parliament that earlier this year shot down a bill aimed at
entrenching the Special Tribunal in the constitution. A sizeable section
of parliament favors prosecutions and is as suspicious of the latest
government demarche as it was of the previous one.
Third, the proposal to deploy ordinary criminal courts poses a number of
problems. It is unclear whether the courts can successfully prosecute
high-profile suspects named by the Waki Commission (which reportedly
include cabinet ministers, members of parliament and businessmen). It is
also common knowledge that Kenyan courts and the criminal justice
system in general lack capacity or integrity to deal with such cases.
The Waki Commission’s call for a special tribunal was meant to bypass
these difficulties. Although the government’s statement notes that the
justice system will need to be reformed in order to render this historic
task possible, this will take months if not years, which Kenya does not
have on this issue. The proposed fast tracking of reforms as part of
Agenda Four of the national accord (that created the GNU in Feb 2008),
relating to constitutional, institutional and other reforms has until
now been mired in political intrigues and delays. Immediate action must
be weighed against the necessary comprehensive constitutional reforms
within the broader reform agenda.
Fourth, although Kenya has taken steps towards bringing justice to
victims, it is important to ensure that these national mechanisms
function in terms of acceptable standards. The meeting between the
justice minister and the ICC prosecutor early last month required Kenya
to set up a credible judicial mechanism to try the suspects within a
year. Failure to do so would invite the ICC to take action. The question
is whether the proposed measures will meet the thresholds required to
keep the ICC at bay (namely that the Kenyan government is willing or
able to take action). For his part, the ICC prosecutor will have to
satisfy himself that crimes against humanity alleged by the Waki
Commission were in fact committed. Recent reports indicate that Mr Luis
Moreno-Ocampo, ICC prosecutor, is following the matter closely and has a
team working on the Kenyan situation. Whether the Kenyan government is
amenable to ICC intervention is, however, a separate matter altogether.
Fifth, for any domestic justice mechanism to be credible and legitimate,
a number of basic standards, principles and norms – both within the ICC
framework and international law generally – have to be met. Some of
these include: victims’ right to an effective remedy (including
reparations) for human rights violations recognized under international
law; amnesty and its limits; obligations under international law
obliging states to prosecute at least the most serious violations;
complementarity and in-built limits to state action.
Sixth, the president, when announcing cabinet’s decision, asserted that
while government would not allow impunity, the country must also pursue
national healing and reconciliation. This is a significant observation,
as decisions will ultimately take into account legitimate concerns about
peace and stability in the country as well as the need to ensure
justice and safeguard the rule of law. One suspects that considerations
of peace and reconciliation will shape further government action and
perhaps the course of transitional justice in Kenya. The tragedy will be
if such considerations, however important, trump justice. The need to
strike a blow against the seemingly entrenched cycles of impunity has
never been greater.
The Kenyan TJRC, which will spearhead reconciliation efforts, must be
bold enough to make tough decisions, however unpopular. This will
require legitimacy, appropriate powers and sufficient resources. In this
regard one hopes that the proposal to amend the TJRC law will not serve
as an opportunity for those opposed to truth and justice to emasculate
the already besieged institution. Moreover, effective national tribunals
– no matter their form – as well as the ICC are, for a range of
reasons, necessary components of an appropriate Kenyan response to human
rights violations and the scourge of impunity.
