Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (59 page)

An analysis of Kenya’s National Accord cannot test the hypothesis that transitional justice contributes to peace. It does, however, suggest that the lack of transitional justice, especially accountability for past atrocities, may temporarily keep the “negative” peace, but it might make future conflict more likely. Continued impunity compounds the shared understanding that violence is a useful political tool. Accountability mechanisms, on the other hand, may put some victims and witnesses at risk in the short term, but they also could facilitate a more positive peace in the future. They are unlikely, in practice, to meet victims’ material needs and we still do not know enough to predict how they might affect reconciliation, healing, and restoration.

For the time being, there is no real trade-off in Kenya between peace and justice, but rather a substantial lack of both. The National Accord has permitted negative peace to prevail, with few signs of positive peace. Tensions will mount again once the ICC trials begin and the 2012–13 campaign and general elections will no doubt exacerbate the situation, raising the risk of broader violence— especially as armed militias are allowed to continue to operate. Government promises of justice, premised on prior judicial and police reform, to be followed by credible trials of numerous perpetrators of the 2007–08 atrocities appear unrealistic, especially in the short-to-medium term, mainly due to lack of will. The only measure that can escape the government’s control and shatter Kenya’s record of complete impunity is to be found at the international level. The ICC
might condemn and sentence some of those most responsible for Kenya’s latest bout of large-scale, election-related violence, but even in the best case scenario it will apply only to a small number of individuals and is unlikely to deter in and of itself future violence.

Kenya also serves as a cautionary tale for other countries at risk of conflict, including with regard to: 1) the application of transitional justice mechanisms in situations where no significant transition has taken place; 2) the potential for anti-accountability alliances to sabotage domestic justice mechanisms, especially under power-sharing coalition governments; 3) the importance of DDR, even in agreements that end conflicts that are not really civil wars; and 4) the needs and vulnerability of victims and their central role as witnesses in achieving accountability.

Acknowledgements

The author gratefully acknowledges funding from the Social Sciences and Humanities Research Council of Canada.

Notes

1
 David Throup, “The Count,”
Journal of Eastern African Studies
, vol. 2 (2008), pp. 290–304.

2
 The Kenyan government does not publish census data on ethnicity. However, common estimates for the main ethnic groups in Kenya are the Kikuyu (21–24%), Luhya and Luo (13–14% each), Kalenjin (11–13%), Kamba (11%), Kisii (6%), and Meru (5–6%). Electoral alliances between ethnic “power brokers” vary widely from election to election. In 2007, most Kikuyu, Kamba, and Meru supported the incumbent Mwai Kibaki and his Party of National Unity. The main support for the main presidential challenger, Raila Odinga, and his Orange Democratic Movement came from the Kalenjin and Luo.

3
 The International Criminal Court (discussed below) did not, however, confirm charges against the head of police Mohammed Hussein Ali for his alleged role in the post-election violence.

4
 For analysis of local peacebuilding in one Kenyan community, see Jacqueline M. Klopp, Patrick Githinji, and Keffa Karuoya, “Internal Displacement and Local Peacebuilding in Kenya: Challenges and Innovations,” Special Report 251 (Washington, DC: United States Institute of Peace, September 2010).

5
 For more on the talks and international contributions, see Stephen Brown, “Donor Responses to the 2008 Kenyan Crisis: Finally Getting it Right?”
Journal of Contemporary African Studies
, vol. 27 (2009), pp. 389–406; Monica Kathina Juma, “African Mediation of the Kenyan Post-2007 Election Crisis,”
Journal of Contemporary African Studies
, vol. 27 (2009), pp. 407–30; and Gilbert M. Khadiagala, “Regionalism and Conflict Resolution: Lessons from the Kenyan Crisis,”
Journal of Contemporary African Studies
, vol. 27 (2009), pp. 431–44.

6
 Kenyan National Dialogue and Reconciliation, “Annotated Agenda and Timetable,” 1 February 2008.

7
 The commission’s mandate, according to an agreement signed on 4 March 2008 by the PNU and ODM negotiating teams, was “(i) to investigate the facts and surrounding circumstances related to acts of violence that followed the 2007 Presidential Election, (ii) investigate the actions or omissions of State security agencies during the
course of the violence, and make recommendation [sic] as necessary, and (iii) to recommend measures of a legal, political or administrative nature, as appropriate, including measures with regard to bringing to justice those persons responsible for criminal acts” (p. 2).

8
 Waki Commission,
Report of the Commission of Inquiry into Post-Election Violence
, Nairobi (October 2008).

9
 The expression was used by Mugambi Kiai, Open Society Institute, interviewed by Stephen Brown and Chandra Lekha Sriram, Nairobi, Kenya, 15 January 2010. The best example of a similar report being ignored in the past is the report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya, known as the Akiwumi Commission, presented to President Daniel arap Moi in 1999, but released publicly only in 2002. It contained serious allegations against many high-level government and ruling party officials, but the government undertook no investigations or prosecutions.

10
 Waki Commission,
Report of the Commission of Inquiry
, op. cit., p. 473.

11
 Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, “Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission” (Nairobi: Government Printer, 2003).

12
 Kenyan National Dialogue and Reconciliation, “Truth, Justice and Reconciliation Commission,” 4 March 2008.

13
 See discussion in Stephen Brown, “Kenya,” in Lavinia Stan and Nadya Nedelsky (eds),
Encyclopedia of Transitional Justice
(Cambridge University Press, in press).

14
 European ambassador, interviewed by Stephen Brown, Nairobi, Kenya, December 2008.

15
 Jennie E. Burnet, “The Injustice of Local Justice: Truth, Reconciliation, and Revenge in Rwanda,”
Genocide Studies and Prevention
, vol. 3 (2008), pp. 173–93; Max Rettig, “Gacaca: Truth, Justice, and Reconciliation in Postconflict Rwanda?”
African Studies Review
, vol. 51 (2008), pp. 25–50.

16
 Western official, interviewed by Stephen Brown and Chandra Lekha Sriram, Nairobi, Kenya, January 2010.

17
 For further information, see Beth Elise Whitaker and Jason Giersch, “Voting on a Constitution: Implications for Democracy in Kenya,”
Journal of Contemporary African Studies
, vol. 27 (2009), pp. 1–20.

18
 See discussion in Stephen Brown, “Lessons Learned and Forgotten: The International Community and Electoral Conflict Management in Kenya,” in David Gillies (ed.),
Elections in Dangerous Places: Democracy and the Paradoxes of Peacebuilding
(Montreal: McGill-Queen’s University Press, 2011), pp. 127–43; Susanne D. Mueller, “Dying to Win: Elections, Political Violence, and Institutional Decay in Kenya,”
Journal of Contemporary African Studies
, vol. 29 (2011), pp. 99–117.

19
 On the judiciary, see International Bar Association and International Legal Assistance Consortium, “Restoring Integrity: An Assessment of the Needs of the Justice System in the Republic of Kenya” (February 2010). On police impunity, see Philip Alston, “Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,” UN Doc. A/HRC/11/2/Add. 6, 26 May 2009.

20
 National Dialogue and Reconciliation, “Independent Review Committee,” 4 March 2008.

21
 Two Western embassy officials and one Western ambassador, interviewed by Stephen Brown, Nairobi, Kenya, December 2008.

22
 Kenya National Dialogue and Reconciliation, “Statement of Principles on Long-Term Issues and Solutions,” 23 May 2008.

23
 Even if the judges were impartial, many feared that perpetrators would be able to tamper with evidence, silence or threaten witnesses, or otherwise prevent a guilty verdict.

24
 Godfrey M. Musila, “Options for Transitional Justice in Kenya: Autonomy and the Challenge of External Prescriptions,”
International Journal of Transitional Justice
, vol. 3 (2009), p. 452.

25
 
A more detailed account of the various attempts to create a hybrid tribunal is available in Stephen Brown with Chandra Lekha Sriram, “The Big Fish Won’t Fry Themselves: Criminal Accountability for Post-Election Violence in Kenya,”
African Affairs
, vol. 111 (2012), pp. 244–60.

26
 Mugambi Kiai, Programme Officer, Open Society Initiative for East Africa, interviewed by Stephen Brown and Chandra Lekha Sriram, Nairobi, Kenya, 15 January 2010.

27
 See Brown with Sriram, “The Big Fish Won’t Fry Themselves,” op. cit.

28
 Human Rights Watch identified only six convictions of low-level individuals, with three other local cases in progress as of December 2011, almost four years after the violence ended. Its report also noted a marked anti-ODM bias in the selection of cases. See Human Rights Watch, “‘
Turning pebbles
’
: Evading Accountability for Post-Election Violence in Kenya
” (New York: Human Rights Watch, 2011), pp. 39–44.

29
 “Justice for Kenya,”
Washington Post
, p. A14, 30 December 2010.

30
 Several unattributable interviews conducted by Stephen Brown and Chandra Lekha Sriram in Nairobi, Kenya, January 2010.

31
 
The Standard
(Nairobi), 10 February 2011.

32
 Synovate, “Kenyans’ Perception towards the ICC Process,” 6 April 2011, available at <
http://www.synovate.co.ke/spr/index.php/site/poll/kenyans_perception_towards_the_icc_process_6th_april_2011
>, accessed 10 July 2011.

33
 Jacqueline M. Klopp, “Kenya’s Unfinished Agendas,”
Journal of International Affairs
, vol. 62 (2009), p. 148. See also Prisca Kamungi and Jacqueline M. Klopp, “Failure to Protect: Lessons from Kenya’s IDP Network,”
Forced Migration Review
, vol. 28 (2007), pp. 52–53.

34
 Victoria Mwirichia and Jeniffer Katusya Barako Elema, “How Far is Home For Kenya’s Internally Displaced Persons?” (Nairobi: Institute for Security Studies), 24 February 2011, available at <
http://www.issafrica.org/iss_today.php?ID=1238
>, accessed 17 April 2011.

35
 On this and other challenges to peacebuilding posed by internal displacement, see Klopp
et al
., “Internal Displacement and Local Peacebuilding in Kenya,” op. cit., pp. 3–4.

36
 See Colleen Duggan, “Editorial Note,”
International Journal of Transitional Justice
, vol. 4 (2010), pp. 315–28 (special issue on “Transitional Justice on Trial: Evaluating Its Impact”).

37
 For instance, former rivals Uhuru Kenyatta (PNU) and William Ruto (ODM) have joined forces to try to avoid being tried by the ICC. There are rumors that they might run on the same ticket during the 2013 elections. However, their alliance might be short lived: after ICC trials begin, they are likely to incriminate each other’s side, presenting themselves and their communities as victims.

38
 Waki Commission,
Report of the Commission of Inquiry
, op. cit.

39
 “Kenyans ‘Rearming for 2012 Poll,’” BBC News online, 7 October 2009, available at <
http://news.bbc.co.uk/2/hi/8293745.stm
>, accessed 17 April 2011.

40
 “Lack of a Credible Witness Protection Unit a Major Setback,”
The Standard
(Nairobi), 9 April 2011.

41
 Nic Cheeseman and Blessing-Miles Tendi, “Power-Sharing in Comparative Perspective: The Dynamics of ‘Unity Government’ in Kenya and Zimbabwe,”
Journal of Modern African Studies
, vol. 48 (2010), pp. 203–29.

14
Conclusions and Considerations for Practitioners

Chandra Lekha Sriram and Jemima García-Godos

Introduction

Summing up the findings of an edited volume of detailed analytic and country chapters is a challenge. We have chosen here to focus upon a few of the numerous issues and lessons developed in this book, and to identify lessons which might be of utility for policymakers engaged in peacebuilding and transitional justice activities. First, in light of the impact of such activities on development, the developmental context that enables or constrains such activities, and the reality that development actors remain in country long after international peacebuilding and transitional justice practitioners have left, we consider the opportunities for closer linkages between the transitional justice activities and development in a peacebuilding context. Second, we consider the opportunities and risks of developing disarmament, demobilization, and reintegration of ex-combatants (DDR) and victim-centered justice activities in tandem, either in broad cooperation or in a more tightly integrated fashion, in light of the fact that such activities often overlap in time and space, in terms of the (largely international) policymaking entities, and in that the subjects of each are generally expected to coexist in fairly close proximity in the long term. Finally, we consider options for timing and sequencing of DDR and victim-oriented transitional justice processes, recognizing that the timing of DDR processes may be relatively inflexible and dictated by the demands of peace agreements and the need to stabilize a situation. We identify the risks and, where possible, opportunities of choices in all three areas, and offer not prescriptions, but guidance regarding key issues and challenges for practitioners to map and examine before pursuing these activities.