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Options for Transitional Justice in Kenya: Autonomy and the Challenge of External Prescriptions

Author: Godfrey M. Musila
Date: 2009
Size: 20 pages (168 KB)

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Summary

What are the options and challenges for transitional justice in Kenya? This article from the International Journal of Transitional Justice argues that despite a general consensus on the need to implement transitional justice measures to address past injustices and to further reconciliation in Kenya, there is little agreement on the form these measures should take. A coherent transitional justice policy is needed in Kenya. This should take account of both political and structural violence, and tackle key issues relating to the impact of international mechanisms and norms on local options and the kind of justice mechanisms to be deployed.

The outbreak of violent conflict in the aftermath of the presidential election in December 2007 brought renewed attention to the evolving debate on transitional justice in Kenya. Whilst there is a general consensus among key players within the government of national unity (GNU) on the need to deal with past injustices, Kenya lacks a coherent transitional justice policy. For example, there is little consensus on how the goals of addressing past injustices and promoting peace should be pursued, what kind of justice (i.e. retributive or restorative) should be promoted, which transitional justice options should be used, how they should be deployed and how they fit with the ongoing transitional justice process.

The absence of a coherent government policy has hampered the transitional justice debate in Kenya, and is likely to impact on any future mechanisms adopted. Key areas of concern include:

• Shifting preferences of the political elite. Political elites have vacillated between the various transitional justice options in an effort to serve their own personal and political agendas.
• Silencing of key players. The wider public and civil society have been largely excluded from the debate, thus calling into question the legitimacy of the process.
• Failure to define and identify key elements relating to any transitional justice mechanisms that might be set up. Examples include: the lack of efforts made to explore the role of the Truth, Justice and Reconciliation Commission (TRJC) within the wider transitional justice process and how it would relate to the Special Tribunal; and the failure of the Waki Commission – established to enquire into post-election violence – to clarify key concepts and issues, which is likely to impact on the implementation of its recommendations; and initial reluctance to discuss the role of the national courts.
• A widespread lack of understanding of the procedures of the International Criminal Court (ICC) including the circumstances in which its jurisdiction can be triggered.

While some progress has been made with regard to post-conflict justice and reconciliation in Kenya, the debate on transitional justice is still evolving. Kenya requires a clear trajectory for any future transitional justice mechanisms. Key elements of a coherent framework include:

• Promoting an inclusive approach to transitional justice that takes account of both political and socio-economic factors.
• Ensuring collaboration and consensus not only at the policymaking level but also within the broader community and civil society.
• Addressing questions relating to autonomy, including the issue of ‘whose justice’ and the roles of various actors. This requires a better understanding of: the constraints imposed on domestic options by the ICC and the complementarity framework; the impact of international mechanisms on the behaviour and processes of national actors and the relationships between them; and the extent to which domestic approaches are shaped by international normative standards.
• Recognising the need for balance between the quest for human rights accountability and wider political reforms underway. In light of Kenya’s fractured political system, an approach that ‘delinks’ narrower questions of accountability for human rights violations and the broad question of political transformation could be helpful in order to enable the emergence of credible national options.

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Source: Musila, G. M., 2009, 'Options for Transitional Justice in Kenya: Autonomy and the Challenge of External Prescriptions', International Journal of Transitional Justice, vol. 3, no. 3, pp. 445-464