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Is Transitional Justice Helpful or Harmful to Peacebuilding? A Case Study of Kenya

Is Transitional Justice Helpful or Harmful to Peacebuilding? A Case Study of Kenya

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This analysis summarizes and reflects on the following research: Wambua, M. (2019). Transitional justice and peacebuilding: The ICC and TJRC processes in Kenya. African Conflict & Peacebuilding Review, 9(1), 54-71.

Talking Points

 In the pursuit of transitional justice and peacebuilding in Kenya:

  • Lack of local ownership and elite interference in the Truth, Justice and Reconciliation Commission (TJRC) and International Criminal Court (ICC) transitional justice initiatives constrained the peacebuilding agenda because victims of electoral violence were not able to achieve justice, a critical element of reconciliation.
  • Although peace was not achieved nor was justice ultimately secured, the TJRC and ICC initiatives, while ongoing, did foster dialogue on reconciliation.
  • Establishing an international or regional institution to ensure proper implementation, compliance, and monitoring of transitional justice initiatives would contribute to their efficacy.

Summary

Transitional justice initiatives are implemented as mechanisms of peacebuilding, yet in some cases they fail. This study explores how transitional justice initiatives—in particular, the Truth, Justice and Reconciliation Commission (TJRC) and the International Criminal Court (ICC)—failed in Kenya. Through analysis of various sources (including the TJRC and ICC’s constitutive legal frameworks, operations, records, and reports), the author concludes that these transitional justice initiatives did not secure justice for victims. The author argues that, since securing justice for victims is integral to reconciliation, these flawed transitional justice initiatives ultimately constrained the peacebuilding agenda in Kenya.

Transitional justice 

“[T]he restorative and retributive judicial and nonjudicial measure initiated within a state to address historical injustices with a view to contrive peace.” 

Since Kenya’s return to a multiparty system in 1991, the country has been plagued by electoral violence. The National Accord and Reconciliation Act signed in 2008 was a response to electoral violence in 2007. The TJRC was created in 2009 as the accountability component of the National Accord and Reconciliation Act. The ICC also began investigations in Kenya in 2010. In the ten years following the 2007 electoral violence, Kenya also implemented a broader peacebuilding agenda—a series of constitutional, institutional, and structural reforms enacted to address human rights violations and build peace. Although Kenya’s 2013 elections were largely peaceful, there was a resurgence of electoral violence in 2017, signifying that the peacebuilding agenda had not achieved its desired results.

Although its mandate was to address historical injustices dating back to Kenya’s independence in 1963, the TJRC could not secure the participation of the local communities where human rights violations took place and was impeded by elite interests. From the outset, the commission’s credibility was called into question by the appointment of its chairperson, who was accused of participating in previous atrocities. This appointment was viewed as a cover-up strategy to protect the state apparatus against allegations of human rights violations. The reluctance of these affected communities to participate, due to credibility issues, hampered the commission’s ability to adequately investigate all claims. In its 2013 final report, commissioners aligned themselves with the ruling elite and expunged details of the more salient crimes implicating their political allies. The crimes that were identified, such as massacres, assassinations, and extrajudicial killings, rose to the purview of international law and could not at the time be prosecuted by Kenya’s courts. The establishment of an International Crimes Division of the High Court of Kenya was proposed as a remedy to prosecute international crimes through a domestic institution, but the court never materialized. In short, the TJRC faced challenges of local participation and was impeded by elite interests, ultimately failing to exact justice due to a lack of political will for establishing the necessary mechanism to prosecute the crimes it uncovered.

Because Kenya failed to establish the International Crimes Division of the High Court of Kenya, thus signaling its unwillingness to seriously prosecute the perpetrators of electoral violence in 2007, the ICC intervened. In all, the ICC identified six perpetrators, all of whom held high positions within either government or political party leadership. It prosecuted only three of them, however, and the charges were either vacated or withdrawn by 2016 due to insufficient evidence. The ICC was unable to prosecute largely because the Kenyan government did not cooperate in providing necessary evidence and allegedly engaged in massive witness interference. Because there were no prosecutions, the ICC was also unable to secure justice for victims of the 2007 electoral violence.

Through his analysis, the author concludes that, due to poor implementation, the transitional justice initiatives had largely negative effects on the peacebuilding process in Kenya. There was, however, a glimmer of hope while the initiatives were unfolding. In the lead-up to the 2013 elections, the TJRC and ICC initiatives were successful at fostering community dialogue on reconciliation, and the 2013 elections in Kenya ended up being largely peaceful. However, electoral violence resumed in 2017, so any gains for peace were short-lived. The author asserts that if transitional justice initiatives are “well initiated, owned by locals and shielded from elite interference, positive peace is highly likely to be achieved”; conversely, “if [they] are not well implemented they may end with a possible recurrence of violence.”

As a broader conclusion, the author underscores the need for a “well-codified regional or international regime” to stipulate proper implementation, compliance, and monitoring of transitional justice initiatives. There is no set of well-defined norms dictating how to pursue transitional justice in a post-violence context, and because of this, countries are limited in their capacity to pursue transitional justice. The author argues that a legal template or script would establish norms and ensure cooperation and compliance at the country level.

Informing Practice

Early in his term, Mexican President López Obrador suggested the need for transitional justice to address the country’s militarized drug war. His current proposal would provide amnesty to individuals convicted of minor crimes related to drug trafficking and narcotics possession. It would, however, exclude repeat offenders and people accused of more serious crimes, such as murder, kidnapping, and enforced disappearances. The proposed amnesty is a laudable first step in the pursuit of transitional justice in Mexico, but it should not end there. Amid allegations of crimes against humanity perpetrated by Mexican federal agents and the cartels in the Coahuila[1] and Chihuahua[2] states of Mexico, it is imperative that justice be secured for the victims. To do so, the transitional justice mechanisms established—whether truth commissions or domestic prosecutions—must be seen as credible, earning the support of affected communities and avoiding elite interference.

Crimes against humanity

“[S]erious violations committed as part of a large-scale attack against any civilian population. The 15 forms of crimes against humanity listed in the Rome Statute include offenses such as murder, rape, imprisonment, enforced disappearances, enslavement—particularly of women and children, sexual slavery, torture, apartheid and deportation.” 

Successful truth commissions are contingent on credibility. The case of Kenya illustrates that truth commissions only work if the local communities most impacted by human rights violations view them as credible and are willing to participate. There is reason to believe that Mexican civilians would be interested in participating, assuming the commission was trustworthy. In January 2020, activists marched in Mexico City demanding a truth commission to address crimes against humanity, which they allege Mexican security forces and non-state actors of committing.[3] To ensure the success of the transitional justice process, truth commissions should occur in the areas most affected by human rights violations. President López Obrador should also mandate the inclusion of both government and cartel violations within the scope of the truth commissions’ investigations to mitigate credibility concerns stemming from perceptions of elite interference.

Truth commissions investigate crimes against humanity and create a public record. As a non-punitive measure, commissions could be complementary to any judicial proceedings, although the details of this relationship would have to be worked out. In the best-case scenario, Mexican federal courts—as opposed to the ICC—would prosecute the perpetrators of human rights violations, including crimes against humanity. This process could be triggered by ICC intervention or by pressure from civil society within Mexico. As demonstrated by the case of Kenya, pursuing retributive transitional justice at the domestic level is highly susceptible to elite interference. There must be legitimate proceedings and adequate political will to prosecute the alleged perpetrators. Citizens who wish to see such prosecutions come to fruition need to maintain pressure on the Mexican government to prosecute perpetrators of crimes against humanity. Simultaneously, President López Obrador should also work to build political will for prosecutions and ensure the federal courts have the capacity and legitimacy to prosecute.

Since 2012, Mexican human rights groups have also called upon the ICC to intervene three times.[4] The ICC has yet to take official action. A guiding principle of the ICC is that national jurisdictions should prosecute the most serious crimes first and foremost; therefore, the ICC does not have jurisdiction if and when a country’s own government is investigating a case. Only when the country displays an “inability or unwillingness” to prosecute can the ICC step in. If the ICC initiates investigations because a country has demonstrated this inability or unwillingness, then ideally that government will be prompted to act and assume jurisdiction of the case, and the ICC will halt proceedings. If a country does not have any laws prohibiting crimes against humanity, then its government can domesticate international law that prohibits these crimes and prosecute accordingly. In this sense, the ICC acts as an international justice watchdog.

Ideally, if the ICC intervenes, Mexican federal courts would be triggered to step up and assume jurisdiction. If federal courts are not spurred into action, the ICC would proceed, prosecuting only the perpetrators with the highest culpability. This outcome would not be ideal, as victims may not view these prosecutions as extensive enough to secure justice. The ideal process, instead, would ensure that all perpetrators of crimes against humanity are held accountable—whether through domestic prosecutions or through the accountability mechanisms of truth commissions.

Continued Reading

Castellanos-Jankiewicz, L. (2020, March 4). Mexico’s amnesty proposal: An instrument of transitional justice. Just Security, Washington, D.C. Retrieved March 13, 2020, from https://www.justsecurity.org/68701/mexicos-amnesty-proposal-an-instrument-of-transitional-justice/

Corder, M. (2018, June 11). Mexican groups seek ICC probe of drug war crimes by military. The Seattle Times.Retrieved March 13, 2020, from https://www.seattletimes.com/nation-world/mexican-groups-seek-icc-probe-of-drug-war-crimes-by-military/

International Center for Transitional Justice. (N.d.) What is complementarity? National courts, the ICC and the struggle against impunity. Retrieved March 13, 2020, from https://www.ictj.org/sites/default/files/subsites/complementarity-icc/

International Criminal Court. (n.d.) How the court works. Retrieved April 1, 2020, from https://www.icc-cpi.int/about/how-the-court-works

Mexico News Daily. (2020, January 27). 4-day walk for truth, justice and peace pleads for an end to the pain and death. Retrieved March 13, 2020, from https://mexiconewsdaily.com/news/4-day-walk-for-truth-justice-and-peace/

Open Society Justice Initiative. (2018). Corruption that kills: Why Mexico needs an international mechanism to combat impunity. Open Society Foundation, New York. Retrieved March 13, 2020, from https://www.justiceinitiative.org/publications/corruption-kills-why-mexico-needs-international-mechanism-combat-impunity

Organizations

International Criminal Court (ICC): https://www.icc-cpi.int/

Keywords: conflict, International Criminal Court (ICC), peacebuilding, transitional justice, Kenya 

[1] Mexico News Daily. (2020, January 27). 4-day walk for truth, justice and peace pleads for an end to the pain and death. Retrieved March 13, 2020 from https://mexiconewsdaily.com/news/4-day-walk-for-truth-justice-and-peace/

[2] Corder, M. (2018, June 11). Mexican groups seek ICC probe of drug war crimes by military. The Seattle Times. Retrieved March 13, 2020, from https://www.seattletimes.com/nation-world/mexican-groups-seek-icc-probe-of-drug-war-crimes-by-military/

[3] Open Society Justice Initiative. (2018). Corruption that kills: Why Mexico needs an international mechanism to combat impunity. Open Society Foundation, New York. Retrieved March 13, 2020, from https://www.justiceinitiative.org/publications/corruption-kills-why-mexico-needs-international-mechanism-combat-impunity

[4] International Federation for Human Rights. (2018). Military and civil authorities reported to the International Criminal Court for crimes against humanity committed in Chihuahua, Mexico. International Federation for Human Rights, Mexico, The Hague. Retrieved March 31, 2020, from https://www.fidh.org/en/region/americas/mexico/military-and-civil-authorities-reported-to-the-international-criminal

 

 

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