Special Tribunals: Which Way for Kenya’s Transitional Justice?

Published on 10th February 2009

Demands for transitional justice characterize societies which experience transformation from command to democratic governance. Reconstruction entails a multivariate four-phase process from repression through immediate post-conflict aftermath (0-5 years), medium-term situation (6-25 years) until long-term (new generation emerges).  During each phase, different specific interventions are required to satisfy “the greatest happiness of the greatest number.” Initially, humanitarian suffering is prioritized, then “just-deserts” restores confidence in the rule of law, but ultimately a new constitutional framework addresses underlying causes of conflicts.

 

The Kenyan reconstruction attempted to avoid violent revolution and the prospect of state collapse through incremental internal constitutional review. In 1982, repression in neo-colonial Kenya precipitated an abortive coup. By 1991, radicalism attained restoration of political pluralism at the cost of myriad political assassinations and detentions without trial. The 1997 Inter Parliamentary Parties Group minimal pre-electoral reforms repealed obsolete colonial statutes. In 2004 the National Constitutional Conference’s “Bomas” Draft comprehensive new constitutional model endorsed the Constitutional Review Commission of Kenya’s reactionary Draft, yet it lacked legitimacy. Hence an ethnically-polarized 2005 national referendum rejected the government’s revised executive-driven model.

 

Throughout the 1990’s, widespread ethnic conflicts seriously undermined national security. The 1999 Akiwumi Report on Tribal Clashes quantified the damage at 3000 deaths and 400,000 internally displaced persons. It identified the perpetrators of violence as including senior politicians, provincial administrators and policemen. It suggested that the solution to social stability lay in prosecution and punishment of offenders who condoned, connived and conspired to create chaos. Being offender-oriented, retributive justice measures guilt and punishes according to the seriousness of the norm intentionally breached. Yet no retributive action was taken. Consequently, two months of post-2007 electoral violence killed 1100 and displaced 350,000.

 

The 2008 Waki Report into post Election Violence indicates that the violence erupted spontaneously. It recommends not merely prosecution but the establishment of Special Tribunals to selectively punish offenders guilty of crimes against humanity, war crimes and gross human rights violations. Restorative justice focuses on an offender making proportionate amends for harm done. Diminished punishment tacitly confers selective amnesties on those offenders who disclose the truth of their role in repression, thereby facilitating reconciliation. It recognizes the necessity of involving external actors including the International Criminal Court and adopting international humanitarian law standards to successfully accomplish transformation of the Kenyan state.

 

The constitutional question which emerges is: if the rule of law presumes that all persons are equal, why should two categories of criminal justice systems in Kenya exist? For ordinary criminals who commit murder, arson, rape, violent robbery, theft and trespass, charges are laid under the Penal Code. However, the Truth Justice and Reconciliation Commission Act, 2008, alternatively provides a reparative framework. Can restorative justice principles explain and evaluate the performance of mechanisms and institutions proposed to achieve transitional justice?

 

Restorative justice is “a process in which all the stakeholders in a specific criminal offence come together to collectively deal with the aftermath of that offence and its implications for the future.” It is distinguishable from “victim-based” remedies since it is “relationship-based.” Marshall’s definition is limited since it does not specify whether mass offences which were not prohibited prior to their commission, should be considered criminal offences. Neither does it identify whether to include the international community as a stakeholder nor their optimum participation levels. Finally, to what extent should the new constitution be restorative and not punitive?

 

Instead of preferring a local election petition to resolve their dispute, an encounter between President Mwai Kibaki and then Opposition Leader Raila Odinga was mediated through the African Union.  Their agreement, legislated into the National Accord and Reconciliation Act, 2008, rejects the dysfunctional criminal justice system and thus requires foreign involvement in subsequent forums whether for conflict resolution or settlement, arising from human rights violations since independence.

 

Divergent jurisprudence schools assess the utility of restorative justice from different perspectives and degrees. Pure positivism insists that the punishment must fit the crime. Natural Rights advocates however, limit individual freedom of movement and property rights to reciprocal recognition of basic needs of marginalized groups seeking inclusion. Sociologists believe that the inherent class tension is reconcilable by restoring an imaginary pre-conflict social consensus.

 

Anthropologists dispute Universalist notions and instead desire reversion to pre-colonial African customary criminal law norms based on compensatory ideals to reconcile victims and offenders to the community. Realists, if the landmark 1996 South African AZAPO Case, is followed, claim that the human good of “knowledge” gained through “truth” somehow serves the “public interest” of “reconciliation.” Curiously, “truth” was prioritized over the right to due process claimed by Steve Biko’s relatives. Hence Marxists reject the sociological notion that there exists any pre-conflict social harmony to restore. Instead an unexploitative bottom-up, needs-based constitution is essential. Finally critical legal studies propose that offender-victim dialogue at a TJRC reflects interaction between strangers meeting as hosts and guests who must work-out how to live together.

 

As signatories to the 1998 Rome Statue, and member of the UN, Kenya is constrained by international obligations to adopt the UN Basic Principles for Use of Restorative Justice Programmes in Criminal Matters. Three restorative justice theses are: Firstly, anthropologist Nils Christie’s “communitarian thesis” describes “conflicts as property.”  Observing an amicable dispute settlement upon breach of promise to marry in Arusha, he noticed the benefits of norm-clarification gained by communal participation. He regrets that modern states introduced punishments whether capital, corporal, incarcerative or fines which stole empowering benefits conferred by self-regulation thus preventing reconciliation.

 

Secondly, however, Howard Zehr’s “civilization thesis” instead emphasizes the victim’s outrage and instinct for revenge. This is subjective. Furthermore, communal indignation tends to escalate into unending blood-feuds. Moreover, only rich offenders can afford to pay compensation, thus degenerating into slavery of the poor. As damage limitation, Canon Law introduced lex talionis of “an eye for an eye.” Later, the 18th Century Enlightenment thinkers rejected the notion of crime as sacrilege and instead invented penitentiaries to provide calibrated punishments to deter emerging property offences. Hence capitalist criminal law had a progressively “civilizing” impact and was imported into Africa under the colonial legacy. Recent developments include the Community Service Orders Act. 

 

Thirdly, John Braithwaite’s “moral discourse thesis” sympathizes with the self-respect of offenders to recognize and take responsibility for their own wrongful conduct, apologize and make things right. While victims are not obligated to forgive, offender may volunteer to account or even apologize, and the community in turn reintegrates both by supporting their restored roles. Thus “reintergrative shaming theory” prevents stigmatization or jailbird syndrome among ex-convicts whose labels force them to associate with criminal sub-culture groups which may absorb them. The TJRC is thus predicated on the philosophy that offenders shall be barred from holding public office in future, as penance that they have fully repented their past atrocities.

 

Stakeholder satisfaction with the multivariate Kenyan transitional justice process is likely to be partial at best. Immediate-term trauma victims shall partially benefit not only from disclosure of “truth” by offenders which would otherwise remain hidden but also from TJRC material reparations. This is a second-best solution. In the medium-term perpetrators of offences not punishable under international law e.g. gross human rights abuses shall benefit from amnesties while the shameless and serious offenders face local Special Tribunals or ICC at The Hague. A transparent and principled criteria for selection of amnesties is crucial for legitimacy. Long-term beneficiaries are future generations upon emergence of a bottom up-constitution which is equitable and redistributes both resources and opportunity, particularly sensitive to the needs of the most vulnerable.

 

The divergent approaches in the Waki Report contrasted with the earlier Akiwumi Report clearly indicate that retributive justice cannot be given priority for achieving stability in low-income countries emerging from post-conflict situations. While Akiwumi was content to blame the leadership for callous impunity, the Waki Report emphasizes structural constraints, mainly lack of political will to punish previous violence culprits; predisposing factors, such as economic inequalities exacerbated by the World Bank SAPs and land scarcity; enabling circumstances, including youth unemployment; which culminated in the precipitating event of ethnic conflicts, death and forced mass displacements.Yet limitations remain inherent in the transformative justice mechanisms adopted. Nevertheless, blanket amnesties as were granted following civil wars in 1992, Mozambique and 2005, Algeria, are widely considered inappropriate. Neither are sham amnesties acceptable. However, the ICC remains largely a diplomatic court which cannot prosecute powerful or well-connected states.

 

With Kenyan-rooted Barrack Obama’s recent historic election as 44th U.S. President coupled with Appellate Judge Joyce Aluoch’s ascendance to the ICC, prospects for indictment are now minimal. Instead the Bills prescribing local Special Tribunals are being revised so as not to violate individual rights to due process. The reality is that the holding in the S.A. AZAPO case is only applicable to the Kenyan situation if the transitional legislation is anchored in the old constitution. This demands urgent consensus between the two principal stakeholders in the Government of National Unity, President Kibaki and Prime Minister Odinga to prioritize the rule of law in transitional justice.

 

By Charles Khamala,

A Nairobi-based Advocate

 


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