By: Huguette Kazeneza and Gerald Obini, HIPSIR
Recently, CIHA Blog partner, the Hekima Institute of Peace Studies and International Relations (HIPSIR), organized an intensive training week on National Healing and Reconciliation in Kenya. Topics explored as part of the training included: transitional justice mechanisms (formal and informal), reconciliation and the role of identity positions and lastly, the impact of trauma on the reconciliation process. We will be presenting a three-part blog post series organized around these three themes with a special look at how humanitarian work could intervene appropriately in such situations.
In this first of three posts, which is based on the training segment led by Ms Florence Mpaayei, Senior Advisor & Coordinator of Peace Practice at HIPSIR, we present the notion of transitional justice. We discuss different transitional justice mechanisms (TJMs) before outlining key factors to take into account when determining which specific mechanism to use, especially the notion of “conflict sensitivity.” Finally, we look specifically at the Kenyan case to understand empirically how TJMs have worked thus far and what additional possibilities may be for the future.
Once a civil war, genocide or a brutal dictatorship ends, there are inevitable questions that arise such as: How do we deal with those who have committed grave human rights abuses? What is the best way to transition to a society that is civil and that respects the rule of law? Do former enemies need to “come to terms with their past” if they are to live peacefully? And how should they do this? With these questions in mind, transitional justice is referred to as the “full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (United Nations Security Council 2004).
In order to establish a peaceful order and to make a good start on the road to the rule of law, often measures have to be taken against major war criminals. If a country has been badly governed or experienced violent conflicts, human rights violations have often been committed either by the government or internal armed groups often against everyday citizens; or by the ordinary people against each other. In these situations, institutions such as the police, judiciary, parliament, etc. have been weakened and are ineffective due to political interference and corruption. Citizens are also often divided along ethnic, political, religious or other lines. Thus, even once a democratic government is elected or peace is restored, these deep-seated challenges must be dealt with. All of these measures fall within a framework of transitional justice which refers to the various programs a country puts in place to deal with historic problems (crimes against humanity, impunity, etc.) in an open and just manner.
Transitional Justice Mechanisms
The purposes of transitional justice are: truth telling about the past, accountability to those responsible for wrongs, addressing the needs of the victims and restoration of their dignity, ending impunity, encouraging people to trust each other and the government make people have faith in the law, guard the unity and stability in the country, promote reconciliation between groups and prevent a return to violence. There are different transitional justice mechanisms which can be used to attain these purposes:
- Do nothing/Silence (also called the “forgive and forget” method): It is deliberately choosing to remain silent or to do nothing about the past. Example: Mozambique (major atrocities on both sides)
- Prosecution: This is taking people to court where they are tried using existing courts (requires faith in the existing judiciary systems), or other courts may also be set-up, such as: a ‘special court’ tribunal to try some particular cases like the one suggested for Kenya, an international process such as the International Criminal Tribunal for Rwanda (ICTR) in Arusha, the International Criminal Court (ICC) in the Hague.
- Traditional justice, healing and reconciliation methods: Rwanda used its traditional courts, the Gacaca, Sierra Leone’s Fambol Tuk – Restorative Justice.
- Lustration: Stopping, removing or refusing certain individuals involved in gross human rights violations and economic crimes from occupying a public office. Non-judicial disciplinary measures which can include early retirement, transfer to less strategic posts, political disqualification such as loss of suffrage.
- Amnesty: This is a deliberate decision not to prosecute those who have committed wrongs. Its main aim is to ensure truth is told.
- Legal reprieve: ‘Political forgiveness’ or exemptions from prosecution for those that committed crimes against humanity
- Memorialisation: The process of creating a memorial for purposes of remembering a person, group, persons, incident, event or era. Examples of Rwanda and South Africa
- Reparations/Targeted Assistance to Victims: Persons who have suffered are given special assistance to overcome the effects of abuse. Example: giving internally displaced people some money and shelter
- Institutional Reforms: Measures are taken to make institutions such as the police and the judiciary) work effectively.
- Truth-seeking: This focuses on knowing the truth about the past. In Africa, the most common form of truth-seeking method is the Truth and Reconciliation Commission.
However before deciding which transitional justice mechanism to use, there are many factors that are needed to be looked at, including:
- the political environment, whether politicians from different parties will agree on what to do;
- the demands and interests of powerful politicians in the current or former government; or their friends in power or in business;
- the level of unity or mistrust between communities because of politics, ethnicity, land, religion or other factors;
- the staff, skills and funds available to carry out investigations, trials and prosecutions; and
- the funds available to offer compensation for victims among others.
Using Kenya as the focal point of reference, Kenya has had several political setbacks after independence. Every presidential election has amplified tensions and been associated with some degree of violence. The 2007/2008 post-election violence claimed over a thousand lives and many Kenyans were internally displaced. Despite the formal transitional justice mechanism which sent presumed major war criminals to the ICC in the aftermath of the violence, several questions remain unanswered if such mechanism brought a peaceful order, accountability, consolation, reconciliation and restorative justice in Kenya. Although many Kenyans believed that it was the better option to use ICC, it had very little social and political significance for the victims. In other words, the mechanism seemed to have collapsed without restoring the nation to a just peace.
Conflict Sensitivity
In her book, Breaking the Cycle of Violence: Applying conflict sensitivity to Transitional Justice (2017), Huma Haider observed that there has been growing recognition that the link between transitional justice and reconciliation is tenuous. However, she argues there is insufficient evidence to support claims that transitional justice processes and mechanisms promote reconciliation. This is why she considers it important to apply conflict sensitivity, a concept which is important for humanitarian work, also to transitional justice. This concept of “conflict sensitivity” enables aid actors to understand that “when working in a conflict setting, one needs to take into consideration various issues relating to asymmetric power relations, cultural diversity, and the values and beliefs of the local populations. Adapting aid policies and programming to the context and better assessing the risks of operating in the environment can improve the sustainability of interventions and minimize risks to projects, partners and beneficiaries,” (Haider 2017). In the case of transitional justice, conflict sensitivity is needed to recognize unintended consequences of transitional justice mechanisms that could even raise violence or tensions (Goldwyn 2013). Conflict sensitivity therefore involves critically reviewing all elements of an intervention to determine plausible outcomes of how it may inadvertently interact with violent conflict (Haider 2017). Haider highlights some questions which therefore need to be considered in determining a TJM: “Which groups will be reached by the intervention (particular conflict group(s); particular language groups; marginalized groups; local populations in-country, diaspora groups)? Will the initiative be perceived as biased or unfair or favoring an affected group? Could the intervention reinforce patterns of domination and exclusion, or perceptions of discrimination? Will the initiative make state and/or social institutions more representative of society?” (2017: 24).
Kenya’s Experience with Transitional Justice Mechanisms
In the case of Kenya, the country experimented with a Truth Justice and Reconciliation commission (TJRC). However, it has been observed that despite this intervention, communities have remained divided. Critiques of the TJRC in Kenya include: “leadership wrangles especially about the legitimacy of leadership of the TJRC; lack of meaningful participation of Kenyans; elite-driven process which did not involve victims and perpetrators at the ground; lack of regime change so TJRC investigating those still in power; mandate too broad according to the time frame and atmosphere in the country; TJRC highly politicized and ethnicized; and at the end even the recommendations from the TJRC report especially about land were not implemented” (Warigia Oringa presentation at Roundtable on the National Dialogue in Kenya 2017).
It could be beneficial for Kenya to incorporate local practices and traditional forms of justice which are often perceived as more legitimate by affected communities (World Bank 2012). For example, Sierra Leone used fambul tok[1], which took the local approach in order to achieve restorative justice. After the war in Sierre Leone, a Special Court and a Truth and Reconciliation Committee were created, and millions of dollars were used by these institutions. However, these mechanism did not touch the ordinary people in the villages who were most of the victims. Fambul tok then originated in the realization that “peace can’t be imposed from outside, or from the top down,” (www.fambultok.org). In the case of fambul tok, people organized reconciliatory ceremonies where perpetrators came forward at bonfires in front of their communities to confess to their victims, to ask for forgiveness, and to be forgiven. With the support of family, neighbours and elders, victims and perpetrators were embraced by the community, and cleansed as part of a traditional ceremony held the next day.
Incorporating more informal TJMs like fambul tok may contribute towards empowering local communities, so that they may reconstruct their community’s social cohesion, and rebuild peace through more localized reconciliation (World Bank 2012). Intervening organizations should recognize that local residents should be enabled to leverage their own already-existing cultural resources so that they own their own processes of reconciliation. Universal standards of justice and human rights continue to be important but may require additional considerations such as the cultures and traditions of a people.
References
Goldwyn R. 2013. Making the Case for Conflict Sensitivity in Security and Justice Sector Reform Programming. http://www.smallarmssurvey.org/fileadmin/docs/Mfiles/CCRVI/CCVRImaking-the-case-for-conflict-sensitivity-in-SJSR.pdf.
Haider H. 2017. Breaking the Cycle of Violence: Applying conflict sensitivity to Transitional Justice. Swisspeace.
World Bank. 2012. “Report on Development, Fragility, and Human Rights.” http://siteresources.worldbank.org/PROJECTS/Resources/40940-1331068268558/ Fragility_Human_Rights_June2012.pdf.
[1] https://youtu.be/rQsBy7b1Prc and http://www.fambultok.org/