ARTICLES

Exploring transitional justice as a vehicle for social and political transformation in Kenya

Evelyne Asaala

Rapporteur, Truth, Justice and Reconciliation Commission, Kenya

SUMMARY

The eventful defeat of the Kenya African National Union political party in the 2002 general elections ushered in a new era for Kenya. With the change of regime an opportunity for transitional justice presented itself. A task force established by the Minister for Justice and Constitutional Affairs advised that there was a need for transitional justice. However, given the political differences among the political elite, this path of transitional justice proved not to be as easy as contemplated. The report and recommendations by the task force were shelved and the sentiments revived only in the aftermath of the December 2007 election violence. The period after the election violence witnessed the establishment of the Kenya National Dialogue and Reconciliation Committee which became the avenue through which the government and the opposition discussed an agenda for power sharing as well as specific issues in need of reform. The KNDRC adopted various measures to deal with the country's political crisis. These included a review of the Constitution; the investigation of the root causes of the violence; the setting up of a Truth, Justice and Reconciliation Commission; the need to establish a Commission of Inquiry into the Post-Election Violence; and numerous institutional reforms. This article investigates the necessity and utility of the various ongoing transitional justice initiatives. In particular, the article undertakes an assessment of prosecution and non-prosecutorial mechanisms of transition as well as the constitutional review process. Other key issues arising from this discourse which the article attempts to address are whether Kenya is a society in transition, the influence of the volatile political context currently obtaining in Kenya on transitional justice efforts; and Kenya's legal obligations on the subject of transitional justice.

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* LLB (Nairobi), LLM (Human Rights and Democratisation in Africa) (Pretoria); asaa-laevelyne@yahoo.co.uk. This article is based on the author's dissertation submitted in partial compliance with the requirements for the degree LLM (Human Rights and Democratisation in Africa), Centre for Human Rights, Faculty of Law, University of Pretoria, 2009.
1 C Offe & U Poppe 'Transitional justice in the German Democratic Republic and in unified Germany' in J Elster (ed) Retribution and reparation in the transition to democracy (2006) 239.         [ Links ]
2 Eg, in the 1980s, Argentina, Bolivia, Brazil, Mexico, Chile and Uruguay embraced different forms of transition to democracy; so did Asia, East/Central Europe and Africa.
3 Z Miller 'Effects of invisibility: In search of the "economic" in transitional justice' (2008) 2 The International Journal of Transitional Justice 266-299.         [ Links ]
4 P van Zyl 'Promoting transitional justice in post-conflict societies' 209 http://www.dcaf.ch/_docs/Yearbook2005/Chapter10.pdf (accessed 8 October 2009).         [ Links ]
5 Van Zyl (n 4 above) 209.
6 Promotion of National Unity and Reconciliation Act 34 of 1995.
7 Established by Law 03/99 of 12 March 1999.
8 The Commission was established on 29 December 1990 to investigate crimes committed during the eight-year rule of Hissein Habre.
9 Established by the TRC Act 4 of 2000.
10 Established on 4 June 1999 by President Olusegun Obasanjo to investigate violations of human rights abuses committed between 1 January 1994 and 29 May 1999.
11 Established in 2002 to investigate human rights violations for the period from 6 March 1957 to 6 January 1993.
12 Established in 1985 by ZANU-PF government to investigate the killings of an estimated 1 500 political dissidents and other civilians in Matabeleland in 1983.
13 Established by President Ellen Johnson-Sirleaf on 22 June 2006 to investigate human rights abuses that occurred between 1979 and 2003.
14 Sierra Leone adopted the Special Court established by the Statute of the Special Court of 2002. In Rwanda the International Criminal Tribunal for Rwanda (ICTR) was established. This was complimented by Gacaca (traditional) tribunals, and national courts.
15 All these countries offered blanket amnesties to all violators. See eg art XXXIV of Liberia's Comprehensive Peace Agreement, signed on 18 August 2003.
16 The two signed peace agreements which embodied transitional mechanisms of amnesty and TRCs: DRC, Global and Inclusive Agreement on Transition, signed 17 December 2002 and Burundi, Arusha Peace and Reconciliation Agreement, signed 28 August 2000.
17 The Commission was mandated to investigate human rights violations by state forces that occurred from Uganda's independence in 1962 up to January 1986, when Museveni came to power (excluding abuses by Museveni's rebel forces).
18 M Mutua 'Beyond Juba: Does Uganda need a national truth and reconciliation process?' (2007) 13 Buffalo Human Rights Law Review 20.
19 Kenya holds its presidential, parliamentary and civic elections every five years. Following the re-introduction of multiparty democracy in 1992, Kenya has held four general elections: in 1992, 1997, 2002 and 2007.
20 Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission chaired by Prof Makau Mutua, 26 August 2003, 9.
21 As above.
22 n 20 above, 19-20.
23 Moi took over power in 1978 in a peaceful transition following the presidential elections that were held within 90 days of Kenyatta's death.
24 n 20 above, 20.
25 As above.
26 n 20 above.
27 n 20 above, 28.
28 'Kibaki won fair and square' The Sunday Standard 13 January 2008 34.
29 The other panelists included Benjamin Mkapa, Graca Machel and Jakaya Kikwete.
30 'Agreement on agenda item three: How to resolve the political crisis' KNDRC (2008) 3.
31 'Agreement on CIPEV' KNDRC (2008) 1.
32 As above.
33 Kenya Gazette Notice 4473 vol cx-no.4 of 23 May 2008.
34 CIPEV Report (2008) Part IV.
35 n 34 above, 472-475.
36 As part of the peace process, KNDRC established a GNU. This was achieved through the signing of the National Accord and Reconciliation Act of 2008.
37 n 30 above.
38 O Ambani 'Conditions are hardly right for transitional justice' Daily Nation 7 September 2009.         [ Links ]
39 G Musila 'Options for transitional justice in Kenya: The Special Tribunal for Kenya, the Truth, Justice and Reconciliation Commission and the International Criminal Court' (2008) South African Year Book of International Affairs 2.         [ Links ]
40 Ambani (n 38 above) 10.
41 J Londale 'Moral and political argument in Kenya' in B Berman et al (eds) Ethnicity and democracy in Africa (2004) 91.         [ Links ]
42 G Muigai 'Ethnicity and the renewal of competitive politics in Kenya' in G Glickman (ed) Ethnicity, conflict and démocratisation (1995) 171.         [ Links ]
43 R Ajulu 'Thinking through the crisis of democratisation in Kenya: A response to Adar and Murunga' (2000) 4 African Sociological Review 137.         [ Links ]
44 Ajulu (n 43 above) 141.
45 As above.
46 Muigai (n 42 above) 171.
47 Lonsdale (n 41 above) 92.
48 Report by the National Christian Council of Kenya 'The cursed arrow: Contemporary report on the politicised land clashes in Rift Valley, Nyanza and western provinces' (1992). See also report by Africa Watch 'Divide and Rule: State sponsored ethnic violence in Kenya' (1993).
49 Ajulu (n 43 above) 143.
50 As above.
51 C Odhiambo-Mbai 'The rise and fall of the autocratic state in Kenya' in W Oyugi et al (eds) The politics of transition in Kenya: From KANU TO NARC (2003) 65.         [ Links ]
52 See generally M Wrong Its our turn to eat (2009).
53 n 34 above, 335 342-343.
54 KNCHR 'Follow-up Report on Extra Judicial Killings and Disappearances' August 2008.
55 As above.
56 'Activists die with a heavy heart' Daily Nation 6 March 2009.
57 F Aolain & C Campbell 'The paradox of transition in conflicted democracies' (2005) 27 Human Rights Quarterly 172.         [ Links ]
58 Ambani (n 38 above) 10.
59 R Teitel Transitional Justice (2000) 1.
60 Velasquez-Rodriguez v Hondarus IACHR, judgment of 29 July 1988 (Velasquez-Rodriguez case) para 184.
61 G Musila 'Federalism and the ethnicity question in Kenya' in G Mukundi (ed) Ethnicity, human rights and constitutionalism in Africa (2008) 63.         [ Links ]
62 D Kadima 'The article of party coalitions in Africa' in D Kadima (ed) The politics of party coalitions in Africa, (2006) 191.         [ Links ]
63 P Asingo 'The political economy of transition in Kenya' in Oyugi et al (n 51 above) 19.         [ Links ]
64 Asingo (n 63 above) 20.
65 Odhiambo-Mbai (n 51 above) 51. See also Mutua (n 20 above) 9.
66 C Leys Underdevelopment in Kenya: The political economy of neo-colonialism (1975) as cited in Odhiambo-Mbai (n 51 above) 64.         [ Links ]
67 Kenya was a de jure one-party state from 1982 to 1992.
68 Asingo (n 63 above) 22.
69 Moi succumbed to pressure from the civil society, religious groups and the opposition, leading to a repeal of sec 2A of the Constitution.
70 Odhiambo-Mbai (n 51 above) 52.
71 Asingo (n 63 above) 28. Ethnic civilian militia groups coalesced around ethnic tribes like Mungiki, Kamjesh, Jeshi la mzee and Jeshi la kingole played an instrumental role in this political violence. See also P Wanyande 'The politics of alliance building in Kenya: The search for opposition unity' in Oyugi et al (n 51 above) 145.
72 The NARC manifesto encompassed ideals such as the promulgation of a new constitution, the introduction of institutional reforms and the need to deal with past injustices.
73 Odhiambo-Mbai (n 51 above) 92.
74 As above.
75 Wanyande (n 71 above) 151.
76 Musila (n 61 above) 63-64.
77 International Crisis Group, Africa Report 137, 21 February 2008 cited by B Ongaro & O Ambani 'Constitutionalism as a panacea to ethnic divisions in Kenya: A post-2007 election crisis perspective' in Mukundi (n 61 above) 24.
78 Report on the Skewed Government Appointments in Kenya' presented to the 9th Parliament in June 2007.
79 K Murungi The East African Standard 22 November 1998 cited in F Jonyo 'The centrality of ethnicity in Kenya's political transition' in Oyugi et al (n 51 above) 159.         [ Links ]
80 D Orentlicher 'Settling accounts: The duty to prosecute human rights violations of a prior regime' (1991) 100 The Yale Law Journal 2551.
81 Art 1 African Charter, art 2 ICCPR, art 2 ICESCR and art 2 CEDAW. It is noteworthy that Kenya has ratified all these conventions.
82 Art 5 of the Rome Statute defines these crimes as genocide, crimes against humanity, and war crimes.
83 nn 41-51 above.
84 Y Dinstein International criminal law (1985) 225 as cited in Orentlicher (n 80 above) 2552.
85 R Aldana-Pindell 'In vindication of justiciable victims' rights to truth and justice for state-sponsored crimes' (2002) 35 Vanderbilt Journal of Transnational Law 1405, as cited in G Musila 'Whistling past the graveyard: Amnesty and the right to an effective remedy under the African Charter: The case of South Africa and Mozambique' unpublished LLM dissertation, University of Pretoria, 2004 17.
86 General Comment 31, Nature of the General Legal Obligation Imposed on State Parties to the Covenant, para 18. See also Velasquez Rodriguez case para 174.
87 CAT was ratified by Kenya on 8 March 1996. Art 4 calls upon member states to ensure that torture or attempt to commit torture are offences punishable by appropriate penalties under criminal law.
88 Ratified and domesticated by Kenya via the International Crimes Act Cap 16 of 2008.
89 Preamble para 6 and art 1 Rome Statute.
90 Defined under art 17(2)(a) of the Rome Statute.
91 Art 17(3) of the Rome Statute establishes a specific criterion of determining inability.
92 T Meron Human rights and humanitarian norms as customary law (1989) 210 as cited by Orentlicher (n 80 above) 2582.
93 Secs 70-86 Constitution of Kenya.
94 Teitel (n 59 above).
95 Orentlicher (n 80 above) 2542.
96 As above.
97 M Osiel Mass atrocity, collective memory and the law 15-22 as cited by J Rowen 'Social realities and philosophical ideals in transitional justice' (2008) 7 Cardozo Public Law, Policy and Ethics Journal 98.         [ Links ]
98 Van Zyl (n 4 above) 210.
99 L Huyse 'Justice after transition: On the choices successor elites make in dealing with the past' (1995) 20 Law and Social Inquiry 55.
100 Orentlicher (n 80 above) 2543.
101 n 34 above, 472.
102 Office of the Special Adviser of the UN Secretary-General on the Prevention of Genocide: Analysis framework http://www.un.org/preventgenocide/adviser (accessed 23 November 2010).
103 G Musila 'Options for transitional justice in Kenya: Autonomy and the challenge of external prescriptions' (2009) International Journal of Transitional Justice 40.         [ Links ]
104 K Some 'Raila breaks ranks with cabinet over The Hague trials' Daily Standard 26 September 2009.         [ Links ]
105 n 34 above, 473.
106 'Panic as Kenya poll chaos case handed to ICC' Daily Nation 9 July 2009.
107 'It's The Hague, Kenyans tell violence suspects' Daily Nation 18 July 2009.
108 'Deadline expires, Ocampo takes over Kenya's case' Daily Standard 1 October 2009.
109 Art 14 Rome Statute.
110 Art 13 Rome Statute.
111 Art 15 Rome Statute.
112 n 34 above, 17.
113 ICC Pre-Trial Chamber II, Decision on the Situation in Kenya; Public decision requesting clarification and additional information, ICC-01/09-15
114 n 113 above, 4
115 Pre-Trial Chamber II Decision on the Situation in Kenya; decision pursuant to article 15 of the Rome Statute on the authorisation of an investigation into the situation in the Republic of Kenya
116 n 115 above, 10; Hans-Peter Kaul J's dissenting opinion
117 L Barasa Sunday Nation 19 September 2010.
118 On 12 February 2009 and in March 2009.
119 n 34 above, 460.
120 'Breaking Kenya's impasse: Chaos or courts? Africa policy brief' Africa Policy Institute 3, as cited in Ongaro & Ambani (n 130 above) 29.
121 n 34 above, 461.
122 'President Kibaki's statement' The Standard 30 July 2009.
123 Truth and Reconciliation Commission of South Africa Report Vol 1 ch 7: Legal challenges.
124 As above.
125 As above.
126 C Sriram Confronting past human rights violations: Justice vs peace in times of transition (2004) 158.         [ Links ]
127 P Hayner Unspeakable truths; Facing the challenge of truth commissions (2001) 43.         [ Links ]
128 B Ingelaere The Gacaca courts in Rwanda: Traditional justice and reconciliation after violent conflict: Learning from African experiences (2008) 45.         [ Links ]
129 A Tutsi-dominated force exiled in Uganda but later defeated the government forces in 1994 and established the current government.
130 Ingelaere (n 126 above) 45.
131 http://static.rnw.nl/migratie/www.radionetherlands.nl/currentaffairs/080208-Rwanda-indictment-redirected (accessed 6 October 2009).
132 S Ratner et al Accountability for human rights atrocities in international law: Beyond the Nuremberg legacy (2009) 193.
133 As above.
134 AI Ethiopia 'Accountability past and present: Human rights in transition' 4 (April 1995).
135 Ratner et al (n 132 above) 194.
136 Ambani (n 38 above) 10.
137 As above.
138 Van Zyl (n 4 above) 211.
139 Mutua (n 18 above) 29.
140 G Musila 'A preliminary assessment of the Kenyan Truth, Justice and Reconciliation Commission Bill 2008' (2008) 5 African Renaissance 3.
141 Act 6 of 2008.
142 Secs 5 & 6, TJR Act.
143 AI 'Truth, justice and reparation: Establishing an effective truth commission' 11 June 2007.
144 Sec 10.3 & first schedule sec 7.
145 Sec 7 TJR Act.
146 Secs 7(1) & (2) 6l TJR Act.
147 Sec 44(1) TJR Act.
148 Sec 44(2) TJR Act.
149 Sec 44(3) TJR Act.
150 Sec 48(2) TJR Act.
151 Sec 49 TJR Act.
152 As above.
153 Sec 34(3) TJR Act.
154 Secs 6(f) & (k)(ii) TJR Act.
155 Sec 24(3) TJR Act.
156 Sec 36(9)(c) TJR Act.
157 AI Kenya Concerns about the TJRC Bill (2008) 6.
158 Sec 9 TJR Act.
159 AI (n 157 above) 7.
160 AI (n 157 above) 6.
161 As above.
162 M Mutua 'An open letter to the vice-chair Betty Murungi' Daily Nation 8 August 2009.         [ Links ]
163 Sec 25 TJR Act.
164 Act 16 of 2006 TJR Act.
165 Sec 4 TJR Act.
166 Secs 4 & 5 TJR Act.
167 'Will witness protection law work?' The Standard 26 July 2009.
168 'Witness protection law to be used in post-poll trials' The Standard 25 September 2009.
169 'House to amend witness Act' Daily Nation 18 October 2009.
170 Sec 20 TJRC Act.
171 Musila (n 140 above) 42-43.
172 Report from OHCHR Fact-finding Mission to Kenya, 6-28 February 2008 17 http://www.responsibilitytoprotect.org/flles/OHCHR%20Kenya%20Report.pdf (accessed 10 October 2009).
173 Hayner (n 127 above) 69.
174 Chs 3, 4 & 5 Promotion of National Unity and Reconciliation Act 34 of 1995, Republic of South Africa.
175 Hayner (n 127 above) 41.
176 Sec 6(b) TJR Act; sec 4(a)(iii) of the Promotion of National Unity and Reconciliation Act 34 of 1995,
177 J Zalaquett Report of the Chilean National Commission on Truth and Reconciliation xxxii.
178 Hayner (n 127 above) 123.
179 Hayner (n 127 above) 129.
180 Hayner (n 127 above) 123.
181 Sec 28 TJR Act.
182 Cap 34 Laws of Kenya.
183 Sec 3 Indemnity Act.
184 AI (n 143 above) 3.
185 See discussion on state obligation in part 2.
186 AI (n 143 above) 10.
187 Sec 25(7) TJR Act.
188 A Armstrong & G Ntegeye 'The devil is in the details: The challenges of transitional justice' (2006) 6 African Human Rights Law Journal 16.
189 AI (n 143 above) 38.
190 Secs 41 & 42.
191 Mutua (n 18 above) 24.
192 Sec 6(s) TJR Act.
193 Secs 5(g), (h) & (i) TJR Act.
194 Sierra Leone TRC Report Vol 1 10.
195 AI (n 143 above) 12.
196 IACHR Ellacuria v El Salvador Case 10488 of 1999 (Ellacuria case). See also HRC Elena Quinteros Almeida and Maria del Carmen Almeida de Quinteros v Uruguay (Communication 107/1981) para 14.
197 Ellacuria case (n 196 above).
198 AI (n 143 above) 6.
199 Art 32, Additional Protocol I to the 1949 Geneva Conventions.
200 Truth and Reconciliation Report of SA (1999) 17.
201 Mutua (n 18 above) 24.
202 A Henkin 'State crimes: Punishment or pardon' in NJ Kritz (ed) Transitional justice (1995) 184 186, as cited by J Sarkin & E Daly 'Too many questions, too few answers: Reconciliation in transitional societies' (2003) 35 Columbia Human Rights Law Review 666-667.
203 Hayner (n 127 above) 42.
204 M Mamhood 'A diminished truth' in W James & L van de Vijver (eds) After the TRC: Reflections on truth and reconciliation in South Africa (2001) 58.
205 Ch 9 Laws of Kenya.
206 Arts 159-162 Constitution of Kenya.
207 Arts 243-247 Constitution of Kenya.
208 Ch 11 Constitution of Kenya.
209 Art 43 Constitution of Kenya.
210 Arts 53-57 Constitution of Kenya.
211 Art 59 Constitution of Kenya.