Friday, November 6, 2009

Transitional Justice: PUBLICATION

The special issues of Oxford's International Journal for Transitional Justice has been published. The special issue, treats the theme:Whose Justice? Global and Local Approaches to Transitional Justice.

My article in the journal 'Options for Transitional Justice in Kenya: autonomy and the challenge of external prescriptions' considers some of the themes in Kenya's evolving transitional justice project.

This issue if the journal, which can be accessed here is a great read.

Thursday, November 5, 2009

Kenya: Prosecutor to Invoke Proprio Motu Power As GNU Pledges Cooperation

Speaking in Nairobi today, the Prosecutor of the ICC Moreno-Ocampo has stated that he will invoke his powers (article 15 Rome Statute) to commence investigations into crimes against humanity allegedly committed during the post electoral violence. The report can be found here. He stated that he has concluded that the evidence reveals crimes against humanity and that the required gravity test can be met. More surprising - perhaps - is the fact that President Kibaki and Prime Minister Odinga, while not agreeing to refer the matter for investigations (the easier route for the Prosecutor), they have pledged to cooperate fully with Ocampo going forward.The statement by President Kibaki and PM Odinga can be found here.

What is important to note is that on the eve of Ocampo's arrival in Nairobi, the two main parties in the coalition - PNU (President's party) and ODM (PM's party) had been engaged in a bitter exchange over the role of the ICC. While there are inaudible voices within each party making the contrary point, the dominant view in the PNU - contained in an OP Ed penned by the PNU-leaning Permanent Secretary in the Foreign Ministry argued that ICC involvement would be 'premature'. See his piece here. There were suggestions that individuals within the PNU had lobbied for the Ocampo to be 'stopped' or 'prevented' from coming to Kenya.

A senior cabinet Minister from the ODM (who is known to be close to the PM) had written an immediate riposte (to the earlier piece), suggesting that those arguing for a delay in the ICC process were 'apologists' for impunity. See his riposte here. Some sort of verbal skirmish had occurred that eventually led to the PS's piece - which could have been considered a GNU position - to be attributed to the government official in his personal capacity. Incidentally, he was in Kenya's delegation to Rome in 1998.

This narration is relevant for at least two reasons. First, the 'reluctance', or 'refusal' by the President and PM to refer the situation to the ICC by themselves as they should have (it would have been the easy way out, as the prosecutor need not seek authorization from a Pre-Trial Chamber to commence formal investigations) - reflects the politics within the GNU. Neither the President nor the PM would like to be seen to be essentially authorizing publicly the prosecution of some of their closest supporters. Invocation by the Prosecutor of his power provides political cover.

Secondly, I believe that it has a bearing on future government behavior - on whether the pledge to cooperate means anything. The peaceful and orderly media conference at which Ocampo spoke belies the deep divisions within the GNU on the ICC issue. There are highly placed individuals who are for and against the ICC process within both parties. The real test is yet to come. It remains to be seen whether the Principals will contain disruptive elements and establish a sustainable cooperation relationship with the Court. Crucially, the much-criticized Attorney General - recently banned from traveling to the US for allegedly 'impeding reforms and aiding impunity' - remains the technical focal point for cooperation. All requests for cooperation from the Court will be addressed to his office. The police - also implicated in the violence - remain key in providing security and other forms of assistance to ICC investigators and staff. Moreover, the Government has to issue travel visas to ICC agents, arrest suspects and provide protection for witnesses and victims.

The government's commitment can only be gauged once this process begins. Clearly, the real test lies ahead. It is noteworthy that some are already predicting that cooperation is unlikely to be forthcoming from government, and that in essence, Ocampo 'has left empty-handed'. See analysis here.


In terms of procedure to be followed going forward, the Prosecutor is required to make his case to the judges of a Pre-Trial Chamber (article 15.3 Rome Statute) arguing convincingly that there is reasonable basis to proceed with investigations (and that the Court will not be wasting scarce resources on unfounded investigations). Ocampo has stated that he will do this in December. If they agree with him, the judges (or judge) will then issue authorization to the Prosecutor to open formal investigations into crimes committed in Kenya (article 15.4 Rome Statute). Kenya will then become a 'situation country' in Rome Statute parlance.

The judges could equally reject the Prosecutor's request, if they conclude that there are is no reasonable basis to proceed: ie that evidence brought before the Court does not reveal that crimes against humanity have been committed; or that the crimes are not sufficiently grave as to warrant an ICC investigation (article 15.6 Rome Statute). According to the standard developed by the Office of the Prosecutor, at least four elements are considered when determining gravity: the scale of crimes (no of people killed); impact of crimes; the nature of the crime(s); and the manner of their commission.

In this event (the judges refusing to grant authorization to open formal investigations), the Prosecutor has the option of availing to the judges additional supporting information at a later date (article 15.5 Rome Statute). He is obliged to inform organizations, victims and individuals that supplied information to map the way forward (article 15.6 Rome Statute). This could include these entities availing more information to the Prosecutor that goes to establish the Prosecutor's case that there are reasonable grounds to proceed.

It will get interesting, that is for sure!

Watch the Press Conference (Ocampo, President Kibaki and PM Odinga) below:

Tuesday, October 27, 2009

Kenya: The Need To Support the TJRC

See my brief comment in the Standard here and a longer version of the article on Oxford's African Arguments Blog here

Kenya: Misconceptions About the Role of the International Criminal Court I

There are many misconceptions relating to the work of the ICC in Kenya. In installment I of a short piece in The Standard (27 Oct), I address the question of process and time. Read here.

Thursday, October 22, 2009

Kenya: Creating Space for the TJRC, 1970 Indemnity Law To Be Repealed

In an earlier post, I wrote that the TJRC has many obstacles in its path. In particular, I mentioned that the 1970 Indemnity Act, which in effect grants amnesty for alleged crimes committed by Kenyan forces in the 1960s, is perhaps one of the highest hurdles that has to be breached. Although the TRC has jurisdiction to investigate human rights violations between 1963-2008 and to make recommendations, the Indemnity Act would bar the TJRC from inquiring into crimes between 1963-1967 in certain geographical areas (the whole of North Eastern Province and some Districts in Coast Province).

Enacted in 1970, the Indemnity Act grants individuals amnesty from prosecution for gross human rights violations (potentially crimes against humanity) and related atrocities linked to the suppression of secessionist and other irredentist forces (during the 'Shifta War') in the former Northern Frontier District between 1963-1967. The Act also bars residents of Isiolo, Marsabit, Tana River and Lamu Districts and the entire North Eastern province that could have suffered violations from seeking compensation in any court, tribunals or commissions.

In its relevant parts, the Act provides as follows:

3.(1) No proceeding or claim to compensation or indemnity shall be instituted or made in or entertained by any court, or by any authority or tribunal established by or under any law, for or on account of or in respect of any act, matter or thing done within or in respect of the prescribed area (see plaves listed above) after the 25th December, 1963, and before 1st December, 1967, if it was -

(a) done in good faith; and

(b) done or purported to be done in the execution of duty in the interests of public safety or of the maintenance of public order, or otherwise in the public interest,

by a public officer or by a member of the armed forces, or by a person acting under the authority of a public officer or of a member of the armed forces.

(2) If any proceeding or claim such as is referred to in subsection (1) of this section has been instituted before the commencement of this Act, it shall be discharged, subject in the case of proceedings instituted before the 1st June, 1969, to such order as to costs as the court may think fit to make.

Although the Act does not seem to prevent the TJRC from making an inquiry (it prevents 'the taking of proceedings', which I understand to mean suing for compensation or commencing a criminal case), it would prevent the TJRC from making recommendations that touch on either the criminal or civil liability of alleged perpetrators. The question is, what is the use of finding out who did this or that, and not be able to recommend ways of remedying the wrong? Clearly, the TJRC's hands would be unduly tied before it begins its task.

On a positive note, it appears that the TJRC will have early respite, and an 'easy way out'. Nominated MP Mohamed Abdi Affey has reportedly drafted a Bill seeking to repeal the Indemnity Act. This carries through a motion that was adopted by the Eighth Parliament (proposed by Wajir West MP Aden Wehliye Keinan) to repeal the law. However, time lapsed without a Bill being presented to Parliament.

It is important that this Bill passes into law for at least three main reasons.

First, it would ensure that the TJRC does not have a 'fragmented mandate' in the sense that it is prevented from inquiring into an important period - and for many one of the darkest periods - in Kenyan history.

Secondly, it insulates the TJRC by ensuring that it is not susceptible to attacks on grounds of unconstitutionality, which would have serious repercussions. Importantly, it seals an important hole likely to be exploited by the enemies of justice - either by the TJRC or any body - who would prefer obscurity rather than clarity.

Thirdly, it generates legitimacy for the TJRC from a large constituency in Kenya who have yearned for the truth for years and who have expressed a sense of disillusionment recently because 'they don't feel that the TJRC Commissioners understand their issues sufficiently'. If it is not doing so already, the TJRC should get behind this initiative by the MP. In a sense, the Bill would go a long way in completing the TJR Act and eliminating one major headache for the Commission. The TJRC loses nothing - and I believe gains more by showing that it is serious about the business of doing justice. However, a quieter behind-the-scenes 'lobbying' could be preferred.

As far as I am concerned, the legal framework within which the TJRC is to function - if effectiveness and constitutional integrity of the process is to be achieved - remains incomplete. The TJR Act must be seen as a broad framework that needs work - either through additional legislative enactments such as the proposed Bill or through a set of internal rules and regulations. In brief, there are a few more holes to be plugged. I will address some of these in my next post.

Wednesday, October 14, 2009

Ocampo Arrival Postponed

Just after the departure of Dr Kofi Annan, the chief mediator in the Kenyan crisis, the much-anticipated arrival of ICC Prosecutor has been postponed for three weeks (until 3 November). The government has explained the delay by suggesting that Prime Minister will be out of the country (in China) for two weeks. Mr Ocampo has requested the meeting to confer with the President and Prime Minister over potential ICC prosecutions of key suspects linked to the post electoral violence (2007-2008). central to these talks will be the government's failure to make progress in the establishment of a judicial mechanism to try the said crimes.Meanwhile, the debate rages on....

Tuesday, October 6, 2009

Kenya: ICC Prosecutor Will Have to Act on His Own

In a meeting with Kofi Annan, Kenyan President and Prime Minister have reportedly stated that they will not formally write the Prosecutor of the International Criminal Court referring the Kenyan situation to the ICC for investigation and possible prosecution of key perpetrators of crimes committed during the post electoral violence. This is certainly to be met with disappointment from victims and civil society organisations that are currently agitating for prosecutions in The Hague. The Kenyan leaders had perfected the art of vagueness, stating publicly that while they are prioritising reconciliation, 'the door remains open for the ICC to come in'. The apparent refusal to refer the situation is significant. While it is not the only trigger of the Court's jurisdiction - a referral from those exercising the powers of Head of State and Government would signify that the government is behind the process, and that it will support the Court in its investigations and prosecutions should these commence. Lacking any machinery to give effect to its orders, the ICC depends on governments for assistance and cooperation to perform its important work.

Some have bee heard stating that since the 30 September 2009 deadline agreed between the government and the ICC Prosecutor for the government to show progress in establishing progress expired, the Prosecutor can somehow come in automatically. this position does not accord with both the Rome Statute and the the 3rd July 2009 agreement. The agreement - in conformity with the Statute - specifically provides that the government will refer the situation should it fail to make progress towards prosecuting suspects.

And while some Ministers have reportedly been heard proclaiming that the 'Prosecutor is free to proceed' two points must be made here. First, Ministers - unless acting with express authority from Head of State and Government - lack powers to refer a situation to the ICC. A referral - just like ratification of treaties - is an expression of state sovereignty, an exercise reserved for the President or Prime Minster, or in the Kenyan case, both acting together. All the three situations currently being investigated by the ICC prosecutor - DRC, Central African Republic and Uganda - have been ceded to the Court by express written invitation from relevant Presidents.

This said, all is not lost for victims. This brings me to the second trigger mechanism built within the Rome Statute. If the Kenyan Principals do not want to act, the ICC Prosecutor will have to invoke his powers to commence investigations. This will require the Prosecutor to act boldly, despite the challenges posed by such a move. It seems reasonable to conclude that the Prosecutor would only invoke this power where the relevant authority do not want to make the referral to the Court. The danger is that such action would incite opposite reaction from the government - refusal to cooperate - with effects that are not difficult to fathom: stalled investigation or prosecution. It is telling that this power is yet to be invoked by the Prosecutor of the ICC. This is not to suggest that he may not choose to do so in the Kenyan case. One suspects that the Prosecutor could be hinting at this possibility when stating that 'Kenya will be an example to the world'. However, the prospect that the Prosecutor would be seen to act in vain (with serious credibility implications for the Court)- should authorities refuse to cooperate - leads me to reasonably conclude that the he is unlikely to take this route. I am sure that recent perception - although for the most part unfounded - that 'the ICC is targeting Africans' is likely to weigh heavily on Ocampo's mind. Invoking his powers will be a last resort, after all is done to convince the government that acting on their own is the best course of action. It is reported that the Prosecutor is to meet the two leaders in the coming days or weeks. Mr Ocampo will be saying things along the lines I have just described: act, or I will. Perhaps in slightly more diplomatic terms.

I will not discuss the third trigger mechanism, which involves the Security Council of the United Nations making as in the case of Darfur Sudan. This is the least likely route, in view of the fact that Kenya has not been on the agenda of that UN body, and is unlikely to be in view of more pressing matter such as Iran, North Korea, and the like.

The matter will continue to evolve...but I guess the three aspects are perhaps the 'immovable constants'. Give that these choices are for the most dictated by considerations in the political terrain that is susceptible to change, we are bound to see a new twist in the plot, including the government taking seriously the idea of prosecuting suspects locally in which case an ICC process could be obviated.

Its wait and see....

Tuesday, September 15, 2009

Releasing Bemba Conditionally: Did the International Criminal Court Judge Err?

The recent decision by a judge of the International Court (ICC) to release Jean-Pierre Bemba conditionally until the conclusion of the case against him has raised some controversy. Bemba, former vice President of the DRC is facing charges of war crimes and crimes against humanity allegedly committed in the Central African Republic. He has been in detention for a just over a year awaiting the commencement of his trial. In a short piece published by the Institute for Security Studies, I address some of the issues in that debate, which implicates various interests: law enforcement imperatives; victims' rights; defendants rights; and the judicial function. Read on

Sunday, September 13, 2009

Kenya To Abandon Use of Police Prosecutors

Police prosecutors, who currently prosecute 90% of criminal cases in magistrates' courts are to be phased out by 2011. Currently, there are 300 police prosecutors, and 73 state counsel nationwide. Speaking at a recent function, the Attorney General states that The strategic plan of the State Law Office 2004-2008 proposed the phasing out of police prosecutors by the end of last year but only 52 out of the expected 150 State counsel were employed since there was an inadequate budgetary allocation to support the phasing out program. These reforms are long overdue. Under the current arrangement, the justice system is unlikely to be able to deal with post electoral violence in an expeditious, competent, fair and impartial manner. Although the AG is constitutionally responsible for all prosecutions, police prosecutors are answerable not to the State Law Office but through the police chain of command. They are also appointed within the same chain, and not by the AG.

Saturday, September 5, 2009

Kenya: Judges Find Their Legs, Challenge President's 'powers' to Create New Administrative Units

Since 1992, Kenyan Presidents (Moi and Kibaki) have blatantly violated the law by creating new administrative units (Districts) without powers and without recourse to popular participation.This actions have been in part pure gerrymandering, and in part a placation of targeted electorate to vote in a particular way. Since power is constitutionally centralised in the Presidency and with it the entire kitty of national resources for him (we haven't had a woman yet) to dole out as he wishes, creation of such units was to convince citizens (who are clearly deluded) that 'power is moving closer to them'. Lacking in resources to put up offices for newly minted administrators (who report to the office of the President indirectly), such units have not brought services closer to the people. It had become routine for ethnic lords to lobby the President for new districts. While resisting true devolution, the Presidency doled out districts at his discretion ... 'rewarding' loyal voters, tribes and clans. More recently, it was reported that President Kibaki had created 20 'sub-provinces'...without consulting coalition partners, political parties, Parliament or the people. Yet these actions have far reaching implications for democracy and how resources will be shared in a future devolved government. It is difficult to fault those who argue that the Presidency is single-handedly attempting to predetermine the future outlook of the country.Under the Districts and Provinces Act, 1992, only 46 out of the current 256 Districts are constitutional and legal. Since the creation of any new districts and provinces requires new legislation, the power to create such units rests with Parliament, and not the Executive.

In a historic judgment
, a High Court judge has effectively declared null and void all districts created in 'road-side declarations' since 1992, in total, 210 districts. A challenge was brought with respect to declaration (made at a public rally) carving Nyamira North District out of the existing (legal) Nyamira District. Is the Kenyan judiciary finally finding its legs? Such a judgment would have been unheard of in days gone by. Judges have been removed for less (in spite of constitutional guarantees of tenure).

The answer to this question has implications for the accountability debate in Kenya. The Waki Commission took the view that the judiciary could not be trusted with crimes arising out of the post electoral violence. The merits f the case notwithstanding, the question is whether Kenya may still have judges who can speak without fear, and to who the weighty task could be entrusted?

The boundaries issue shows that the notion of impunity in Kenya is much broader than 'criminal impunity'. The idea that public officials can act outside the law without challenge is nothing if not impunity. As one contemplates how to deal with post electoral crimes, and impunity linked to gross human rights violations, broader institutional arrangements need to be put in place to address other forms of impunity and to instill greater regard for the rule of law....this can be done in part through current institutional and constitutional reforms.

Wednesday, September 2, 2009

Kenyan TJRC Will Not Meet ICC Complementarity Test: Prosecutions Required

The Kenyan government - at least since the resolution by cabinet to ditch the Special Tribunal - has been holding out the TJRC as a panacea to demands for justice (in particular relating to post election crimes). Some attempted a bizarre spin that the TJRC would 'try' these suspects. The TJRC is not a criminal court, and cannot perform this function.

This said, the government's position raises a crucial question within the context of the ICC, which is still favoured by many (for a range of reasons) to deal with post electoral crimes. The question is whether, if no other mechanism - one before which at least some of the perpetrators can be tried - is NOT established, the TJRC can satisfy the complementarity requirement.

In terms of complementarity, the ICC would only come in to indict and prosecute suspects if Kenyan authorities are unable, or unwilling to bring perpetrators to justice. In her well argued piece, Lydiah Kemunto Bosire argues that deploying the TJRC would not pass muster, and that a prosecutorial mechanism is required. Read Lydia's piece here

Kenya: Special Tribunal Bill Staggers on Day One

The Special Members Bill proposed by Hon Imanyara has run into early problems. As it gathered support of close to 50 MPs, a new lobby of MPs opposed to the Bill has emerged, prompting the Bill's proponents to suspend calling for early recall of the House which is on 6 weeks recess. It could be argued that this developments may as well have dealt the Bill its death blow, although its prospects of becoming law were less than promising from the start. This is a sad development for victims who continue to wait for justice. While the MPs position goes against grassroots support for accountability, the fact that many represent constituencies with large numbers of IDPs and where most of the violence was concentrated carries some weight in the ever evolving saga. The MPs cite the proposed removal of Presidential immunity by the Bill as their reason for opposing it. It is noteworthy the earlier Bill that failed in Parliament did not have this clause, neither does Kenya's International Crimes Act which domesticates the Rome Statute of the ICC.

Al Bashir Invite to Venezuela Presents Fresh Test for ICC, Its Protagonists

The invite extended by Venezuelan President Hugo Chavez to President Omar Al-Bashir to participate at the Second Africa- South America Summit in Venezuela (a state party to the ICC) will provide a new test for the ICC and its Prosecutor in the contentious Al Bashir case. It remains to be seen whether the Sudanese president will continue to exercise caution in his choice of travel destinations over fear of possible arrest. The president failed to turn up for a meeting in Kampala in August....

Drastic Recommendation of the Liberian TRC Sparks Heated Debate in Diaspora

The recommendations made by the Liberian TRC two months are generating heated debate over a range of issues, including which institution - executive or legislature should implement the report. It is noteworthy that one of the main recommendations is to banish from public life key individuals in the political establishment for 30yrs, including President Sirleaf.

Monday, August 24, 2009

Is the TJRC, Special Tribunal Irrelevant Institutions?

One commentator suggests that there is no need to drag the country through a painful TJRC process: 'We know the truth; just give us justice and reconciliation'. he points to numerous reports by various commissions and civil society organisations (both national and international) that have documented human rights violations over the years. Identifying the State as the main culprit, Dr Muhula seems to underplay and perhaps ignore individual responsibility in some of the alleged wrongs. All his prescriptions on how the country should proceed are targeted at State institutions. One wonders whether state-driven reconciliation can work in cases where identified perpetrators are fellow citizens and neighbours unaffiliated to the state or state objectives. His definition of 'justice' is somewhat ambiguous but seems to translate to a set of measures that exclude individual criminal sanction to which he makes but cursory mention. Do these arguments have merit?

Saturday, August 22, 2009

TJRC to begin work in two months

The TJRC is in the process of putting in place modalities that will enable it commence work in two months. Meanwhile, respected human rights activists appointed to the TJRC have rejected calls to resign, stating that they believe that the TJRC can deliver. The calls are aimed at denying the TJRC - whose chair's integrity has been questioned - any scintilla of legitimacy it may derive from the presence of the human rights activists.

Wednesday, August 19, 2009

Of False Impunity Debate, and the Necessity of Domestic Prosecutions in Kenya

Much of the debate in Kenya has been focussed on whether trials should be conducted in Kenya or in The Hague (at the International Criminal Court) and whether the TJRC is an appropriate mechanism to 'try' at least some of the cases linked to the post electoral violence. This is an important debate, but it is a false one. It is a false debate because it avoids or ignores foundational issues, and makes false assumptions. Trials will happen in The Hague not because Waki Commission said so, but because alleged crimes are international crimes: genocide, war crimes or crimes against humanity, and a number of other requirements are met. Those clamouring for mandatory prosecutions in The Hague, or by the Special Tribunal do not seem to have grappled with this fundamental issue, and appear to proceed from Waki's unreasoned recommendation.

Charles Jalloh, argues that much of the debate on options for justice in Kenya, in particular the debate around local trials and The Hague proceeds from the wrong assumptions. He problematises ICC involvement in Kenya and addresses the question as to whether relevant crimes have been committed for the ICC to get involved. He also considers various technical and legal issues and highlights the various thresholds that will inform the involvement by the ICC In Kenya. On the strength of various solid arguments - legal and factual -, he suggests that while the ICC could yet play an important role, domestic prosecutions remain the best option for Kenya.
Read Jalloh's article here.

Charles C. Jalloh is an assistant professor at the University of Pittsburgh School of Law. He previously worked at the Special Court for Sierra Leone and the UN International Criminal Tribunal for Rwanda.

Thursday, August 13, 2009

Private Member Bill on Special Tribunal To be Introduced

As attacks against government mount (because of its decision to ditch the special tribunal), a Member of Parliament Gitobu Imanyara is to introduce a Private Member's Bill in Parliament to ensure the Special Tribunal is established.This is an initiative of the Law Society of Kenya, Mr Imanyara and a number of 'like minded' MPs.

Unlike the previous Bill that failed in Parliament, the law proposed by the MP removes the immunity from prosecution enjoyed by the President. This was a contentious issue at that time and in recent Cabinet meetings where the ICC was discussed. The proposed Bill also strips the President of his powers to grant pardon to convicted individuals. The bill also aims to establish investigative and prosecutorial autonomy for the Tribunal by excluding the Attorney-General’s powers under Section 26(3)-(8) of the Constitution. Under that section, the AG is solely responsible for criminal prosecutions and reserves the power to terminate any criminal proceedings anytime before conviction.This power has been used in the past under very contentious circumstances.

In a move that is unprecedented in Kenya's legislative history - but which undoubtedly reveals the desperation of those pushing for it, as well as the fear that the initiative will be killed at one stage or the other of the legislative process -, the Bill seeks to exempt the Act from the provisions of Section 46(2) of the Constitution, in terms of which all bills passed by Parliament have to be assented by the President to become law. For the attempted exclusion of Presidential attempt and other reasons, one commentator has declared the Bill as 'hot air', 'legally repulsive' , 'impracticable' and a 'non-starter'.

The Bill also contains language that ensures that there will be no requirement of consent of President to incur expenditure as per Section 48 of the Constitution. Typically, when a law is proposed by a private member, government usually takes the initiative over if it involves expenditure. The language is meant to ensure that the legislative initiative is not hijacked by government in view of cabinet's resolution not to establish a special tribunal.

It remains to be see how this turns out. What is for sure us that a new battle front has been opened within government factions as well as between cabinet and parliament. While the proponents of the latest initiative suggest that the public can participate (they have launched a website:, the citizens and victims remain spectators in this evolving saga.

Conditions in Kenya are Hardly Right for Transitional Justice

For a transitional justice project to succeed, certain conditions must exist. In his article published in the Daily Nation on August 12 2009, Ambani Osogo argues that the Kenyan situation lacks the ingredients....

Monday, August 10, 2009

Kenya Can Learn From Rwanda

The decision by Cabinet to scrap the Special Tribunal and to deploy ordinary criminal courts alongside the TJRC has drawn sharp criticisms from those who fear that corruption is rife in the criminal justice system and that inefficiencies within the system could be an easy ticket to freedom for key suspects. I have argued as much in a previous posting (30 July 2009). In his piece published in the Rwandan newspaper New Times, on 10th August 2009, Idi Gaparayi argues that ordinary criminal courts, while prone to 'imperfect justice' have their role. He argues that the Rwandan example, where hundreds of thousands suspects had to be prosecuted, national courts have played an invaluable role...

Read on....

Kenya: Domestic Justice for Post-Election Violence Crimes

By Idi Tuzinde Gaparayi

When the Government of Kenya announced on Thursday July 30, its decision to refer post-elections violence cases to national courts, critics decried the measure as upholding impunity. Ordinary justice, they say, is inadequate in handling extraordinary crimes.

What is needed is special justice, either in the form of a special tribunal or, better still, before the International Criminal Court in The Hague.

It is easy to understand these compassionate ‘right-thinking’ advocates. A pre-condition that appears to have paved the way towards genocide in Rwanda was immunity from prosecution for those who had perpetrated violence against the Tutsi minority since, at least, the time of independence in 1962.

As a consequence of this culture of impunity, when orders to eliminate Tutsi were propagated after the death of President Habyarimana, those who joined the genocide against the Tutsi acted without fear that their crimes would result in punishment.

Thus, the failure to prosecute serious crimes is considered as bad if not worse than the crime itself. Impunity breeds violence.

Yet, while the motto “crimes must not go unpunished” is embraced evenly by political opponents in Kenya, the mere commitment to justice offers little guidance into the manner or the timing for implementing this ideal of accountability, which entails not only the protection and vindication of rights, but also the prevention and punishment of wrongs.

Of course, criminal trials can play an important role in the aftermath of violence. They express public denunciation of criminal behaviour.

They can provide a direct form of accountability for perpetrators and ensure a measure of justice for victims.

Criminal trials can also contribute to greater public confidence in the State’s ability and willingness to enforce the rule of law.

In the context of Kenya, prosecutions can help to de-legitimize extremist elements, ensure their removal from the national political process and contribute to deterrence.

However, achieving and balancing the various objectives of criminal justice is less straightforward then it might first appear.

There are a host of other constraints that societies emerging from violence and anarchy have to take into account.

For example, in 1994, Rwandan law was not designed to deal with the challenges faced when massive numbers of people – survivors and perpetrators of crimes – have to live together again, side by side, in an extremely poor country.

Some adaptations to the real-world circumstances of Rwanda were needed.

Thus, in assessing policy decisions designed to achieve justice for post-elections violence crimes in Kenya, it is important not to uphold them to unrealistic ideals.

Justice is not achieved when rigid adherence to human rights principles results in political collapse.

It is important to consider that the choices of accountability mechanisms in Kenya are taking place in a context of a power-sharing agreement, and that of chief concern to the parties at the negotiating table in the aftermath of the disputed 27 December 2007 elections, was the imperative to stop the wave of violence and lawlessness raging around the country.

Moreover, it is no secret that the debate over accountability mechanisms in Kenya is taking place within a much polarised political environment, as demonstrated by the failure to pass the Special Tribunal Bill in February this year.

Just as peace is an outcome of an agreement between the Party of National Unity and the Orange Democratic Movement, a political consensus on the nature and scope of criminal justice for the violence is critical for its success.

Accountability in the Kenyan case calls for political and legal pragmatism that is adapted to the context, and respond to the needs, of Kenyans.

Advocates of criminal justice in Kenya have great faith in the power of the law and legal institutions – such as the ICC - to resolve the accountability question.

The ultimate test, however, ought to be whether Kenyans stand to benefit when the “peace and justice” agenda is defined according to local values, norms and prevailing circumstances, and thus put into the hands of domestic actors, international actors merely lending support to the domestic process, or when “peace and justice” is more or less a uniform script falling to a greater degree to the discretionary authority of international agencies and actors such as the United Nations or the International Criminal Court.

If the Rwandan experiment has anything to offer, it is that, in the aftermath of mass violence, domestic processes, however imperfect, offer the best option for rebuilding a nation.

Kenyans have within themselves the resources to deal with post-election violence crimes in a manner that is realistic and informed by the realities of the situation within the country.

Prosecutions through regular courts thus offer one solution to the demands for accountability.

IDI GAPARAYI is an International Criminal Law Expert based in Kigali. He has worked at both the International Criminal Tribunal for Rwanda and for the Former Yugoslavia. He has written extensively on Rwandan post genocide justice.

Sunday, August 9, 2009

Justice Minister Insists on Special Tribunal and MPs Bicker

Justice minister Mutula Kilonzo, has insisted that only a Special Tribunal conforms to international standards. The minister, who appears to be the lone champion of the special court in Cabinet was responding to accusations that he is pursuing a political agenda and that his position is aimed at 'eliminating the main contenders' in the succession battle to pave the way for Vice President Kalonzo Musyoka.

The Minister's comments came at a time when rifts in Cabinet are widening. Cabinet was said to meet to decide how to proceed with the proposal to revamp the mandate of the TJRC, which the Chair and Deputy Chair of the TJRC have allegedly opposed.

Meanwhile, two MPs are in the process of preparing a private members Bill to reintroduce the Bill establishing the Special Tribunal in Parliament should cabinet not act. A number of MPs who initially opposed the Special Tribunal are said to have changed their stand....

Meanwhile, religious leaders continue to insist that a mechanism to punish at least the key suspects is necessary for 'full justice'.

Saturday, August 8, 2009

Torture Victims, Former Mps and Activists Sue in Court for Removal of TJRC Chair

A new twist in the evolving TJRC saga: A Nairobi court has allowed former torture victims and other activists to sue for the removal of the TJRC Chair, Amb Bethwel Kiplagat whom they have accused of being part of the oppressive state machine under President Moi. The Court has granted permission for them to proceed against Kiplagat with a view to invalidating the oath of office he took last week.

Meanwhile, it appears that government is unwilling to establish a complementary judicial mechanism to the TJRC. Acknowledging the role of the TJRC, the EU has warned that funding to the TJRC will be pegged to the establishment of a judicial mechanism to try key suspects linked to the post electoral violence.

Speaking in Nairobi, the Chair of the Kenya National Commission on Human Rights Ms Florence Jaoko has stated that two years granted to the TJRC is not sufficient for it to meet its broad mandate.

The Secretary general of the Central Organization of Trade Unions (COTU) Mr Francis Atwoli has hit out at dithering ministers, noting that Waki Report on Post Electoral Violence offers 'no escape route': it is either a local tribunal or The Hague (ICC).

Thursday, August 6, 2009

Local Courts Not Ideal to Try Suspects

As cabinet resolves to deploy local criminal courts rather than a special court, commentators argue that for a range of reasons, this is not ideal">problematic.

Former President Moi Weighs In: TJRC May Stoke Violence

Former President Daniel Arap Moi has weighed into the transitional Justice debate, warning that the TJRC could unleash demons the current leaders would be unable to deal with. He warns of possible division and further violence. Having been at the helm for 24 years, he probably understands the country better than most.While he does not suggest how the government should go about it, he betrays a scintilla of hope that the process should not go ahead. Is this in self interest? Some of the darkest days in Kenya's history were spent under his Presidency....for those who suffered, but lived on.

Meanwhile, the Prime Minister Raila Odinga has defended cabinet's decision to establish a TJRC instead of a Special Tribunal recommended by Waki Commission. He noted that the threat by a section of parliament to shoot down (once again) government's attempt to pass the special tribunal law was sufficient dissuasion for cabinet.

Transitional Justice: KEY DOCUMENTS

National Dialogue and Reconciliation Act (2008)

National Dialogue and Reconciliation Resolution on TJRC

Report of the Commission on Post Electoral Violence (Waki Commission), 2008

Truth, Justice and Reconciliation Act 2008

Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007 (Justice Kriegler Report).

Special Tribunal of Kenya Bill (2009)

Constitution (Amendment) Bill, 2009 (Did not pass in Parliament)

International Crimes Act, 2008.

Alston Report on Extra-judicial Killings (FEB, 2009)

President's Statement
on Cabinet's Resolution on Transitional Justice (30 July 2009)

Tuesday, August 4, 2009

TJRC Commissioners Sworn In as Justice Minister Dares/Urges ICC to Issue Warrants

Individuals recently appointed to serve on the TJRC were sworn in on Monday 2 August 2009. They are however unlikely to commence operations in view of the recently announced plans to amend the TJR Act 2008 that creates the commission to strengthen it.

Speaking at the event, Justice Minister Adv Mutula Kilonzo stated that the TJRC cannot try international crimes and suggested that the ICC should proceed with issuing arrest warrants if it considers that the relevant thresholds have been met.

This raises one important question that must be answered in respect of a possible role of the ICC: can the ICC come in? Before addressing the question as to how the ICC jurisdiction should be triggered (this has serious implications), the question is whether the violence in Kenya discloses any ICC crime: genocide, war crimes and crimes against humanity. The issues of war crimes does not arise (the situation did not disclose an armed conflict), genocide is a long shot (for a range of reasons). The Waki Commission that recommended ICC involvement suggested that crimes against humanity had been committed. However, WAKI's recommendation is problematic: the commission made no attempt to clarify what it meant by 'crimes against humanity' beyond stating that some of the attacks were 'systematic'. Its conclusion is therefor baffling. Its failure to delve into the issue invites the conclusion that its core recommendation - trial of suspects by a special local court or by the ICC - may be unfounded.

Yet until now, debate has proceeded as if crimes against humanity are a certainty. The ICC prosecutor office's suggestion that it 'will come in' should Kenyan authorities fail suggests as much. Ascertaining whether the evidence discloses an ICC crime is the OTP's next task or to the extent that Kenyan courts will be deployed, they must grapple with this issue. Until then, the call for ICC involvement in Kenya will remain empty and speculative...

Meanwhile, a new study shows that few Kenyans understand what the TJRC is about, or are skeptical about results. This does not bode well for an institution whose 'success' depends largely on legitimacy and engagement with the public...

Monday, August 3, 2009

Economic Issues, Land and Transitional Justice

Unlike the majority of previous Truth Commissions around the world, the Kenyan Truth, Justice and Reconciliation Commission (TJRC)has an express economic mandate. Other thna investigating civil and political rights (torture, assassination's, arbitrary detention among others), it is required to inquire into grand corruption, land distribution and other 'historical injustices', understood to include among others, various forms of economic marginalization.

Although including economic issues in the TJRC's mandate is problematic (I address this in a future posting), there is a sense in which including such issues is not only logical, but also necessary.The narrative of grand corruption, economic crimes and economic marginalization resonates in impunity debates in Kenya.

In an excellent piece, Chris Huggins, a specialist in conflicts over land and natural resources, particularly in Africa, considers the explosive land question - identified by many as one of the root causes of conflict in Kenya - within the broader transitional justice debate.

Differing Views in Government as Anti-Prosecutions Lobby Gathers Steam

After Cabinet decided to deploy the TJRC and domestic courts, differences remain in government on how best to proceed. While some Cabinet Ministers suggest that The Hague remains the best option, consensus seems to be coalescing around a local process, with an emphasis on the TJRC.

Watch events over the weekend:

Friday, July 31, 2009

Liberian TRC Exprience Holds Lessons for Kenya

In what will go down as one of its most drastic recommendations, the Liberian Truth and Reconciliation Commission has recommended that a 50 individuals - leading public figures in that country-, including the serving President Sirleaf should be barred from public office for 30 years for their alleged roles in, or links to human rights violations under the then War Lord and later, President Charles Taylor.

In an Op-ed piece, Professor Makau Mutua (Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission), who chaired the Task force on the Truth Justice and Reconciliation Commission in Kenya in 2002, comments on the findings and recommendations of the Liberian TRC and argues that the Liberian TRC carries important lessons for Kenya.

Thursday, July 30, 2009

Kenyan Government Ditches Idea Of Special Tribunal, Opts for Ordinary Courts and TJRC

The battle that has been raging in the Kenyan Cabinet for the last two weeks over how to address post electoral violence and historical injustices has produced at least one casualty: the Special Tribunal for Kenya (STK). On 30 July 2009, Cabinet resolved to abandon the STK and deploy ordinary criminal courts instead, together with a Truth Commission with 'enhanced powers.' This decision is bound to generate controversy. While ordinary criminal courts merely replace the STK and there should be no concern as to whether the government is trying to avoid prosecutions, the history of the Kenyan judiciary's subservience to the executive leaves much to be desired.

I would not be surprised if this move were interpreted by some as inimical to the fight against impunity to the extent that it vests an important accountability role in a judiciary in which many have little faith. One commentator makes a good empirical argument why local courts are not ideal.It could be argued, that this decision defeats the essence of Waki Commission's recommendation that a Special Court supported by Special Magistrates Courts operating outside the judiciary be created to try post electoral violence suspects. It could be safely assumed that Waki Commission was not comforted by the efficiency record and rectitude of the kenyan judiciary and considered that bypassing it is essential in the current accountability efforts.

Cabinet- which had been agonising for the last three weeks, was divided into various camps on this issue. On announcing this decision, the President noted that while the government does not want to appear to favour impunity, it is important that the country moves towards reconciliation and healing.In this regard, the President noted that Cabinet had considered Five options:

i) The Special Tribunal,

ii) Referral to the International Criminal Court (ICC) under Article 14 of the Rome Statute,

iii) Withdrawal from the Rome Statute under Article 127 and repeal of the International Crimes Act, 2008

iv) The High Court under Section 8 of the International Crimes Act, 2008

v) Establish a Special High Court Division

In his statement, the President goes on to state that:

Cabinet discussed these options extensively in terms of merits and demerits.

The Cabinet took all the circumstances into account, including providing the enabling environment for the ongoing reform agenda.

Cabinet resolved it will not stand for impunity in the pursuit of justice, and the country should pursue national healing and reconciliation. Therefore, the Cabinet:

i) Reaffirmed its commitment to rule of law, and in particular in its commitment to the International Criminal Court and will co-operate and fulfill its obligations to the Court;

ii) Will undertake accelerated and far-reaching reforms in the Judiciary, Police, and investigative arms of Government to enable them investigate, prosecute and try perpetrators of post-election violence locally;

iii) Deal with other forms of impunity including extra-judicial killings, corruption, and unlawful acquisition of public land and other assets;

iv) Propose amendments to the Truth Justice and Reconciliation Act to make the TJRC more representative and effective.

Cabinet is confident that with proper healing and reconciliation, Kenya will not face the events of last year’s post-election violence.

However, the decision to use ordinary criminal courts raises several concerns. The role of the Attorney General, one of the more criticised officers in the land will once again come under scrutiny. The AG is vested with overral prosecutorial powers under s 26 of the Constitution and will - despite the criticisms that he has failed to discharge those duties well in the past - be solely responsible for preparing cases and mounting prosecutions. I suspect that the AG's powers to discontinue any case brought before the courts without giving reasons ( nolle proseque powers) will be cited as problematic.

In discrediting this new move from the government, I see commentators and civil society pointing to the fact that the same courts have been tested and have failed in prosecuting individuals linked to the post-electoral violence. It may be recalled that the only two cases ever brought to Court-that of Jackson Kibor (for alleged incitement to violence) and the 'Kiambaa Four' for their alleged role in the Church fire that killed several people collapsed for various reasons.

While Kenya is a a sovereign state, and bears the primary responsibility to prosecute crimes, international observers in particular the ICC Prosecutor will want assurances that this process is not being created solely for letting suspects off the hook - that it is not a sham process and that it has prospects of dispensing fair and credible justice.
Failure to meet this criteria will invite the ICC, within the Rome Statute's complementarity framework.

It is also being suggested that the Truth Justice and Reconciliation Commission (TJRC) will be strengthened, and its membership made more widely acceptable. It is not clear what additional powers will be vested in it, although the membership issue suggests that the government is alive to the criticisms voiced over some of the commissioners recently appointed to the TJRC (see earlier blog below) and may replace them or expand its membership.

One group that is likely to 'suffer injustice' as a result of the decision to deploy ordinary criminal courts are victims: not so much for the diminished possibility of speedy, fair and credible prosecutions of perpetrators as for the loss of rights granted to them under the proposed Special Tribunal law. The proposed law granted to victims rights akin to those introduced in international criminal law by the Rome Statute of the International Criminal Court (art 68.3): the right to participate at all stages in criminal proceedings and the right to reparations. These rights do not exist in Kenya's criminal law, which follows a common law tradition in terms of which victims of crime have no right to participate in criminal proceedings beyond the role of witnesses. Equally, reparations can only be claimed in a civil proceeding separate from the criminal case. There are no examples that I know of where victims - who are for the most part unaware of this right, and would in any case be unable to afford such an expensive venture - have brought such suits after the conclusion of the criminal case. The matter usually ends with conviction and criminal sentence which may include a fine that goes to the state, and not the victim of the crime. Even where a suspect is responsible for the injury suffered, but the prosecution is unable to prove the case beyond reasonable doubt- therefore no conviction- the court cannot order reparations. The STK would have afforded an opportunity for the Kenyan criminal justice system to begin to grapple with the new dimension introduced in in international criminal law by the ICC. Despite the complexity involved, judging from current practice at the ICC, the opportunity to inaugurate a victim sensitive criminal justice system seems to have been lost ....

Without a clear transitional justice policy, the government's continuing ad hoc approach leaves much to be desired. It remains to be seen whether more light will be shed on these new proposals. What is for sure is that a new stage in this debate has just began...

Wednesday, July 29, 2009

Transitional Justice Debate in Kenya Unfolds in Near Policy Vacuum and Ethnic Tension

When one dissects the transitional justice debate in Kenya, and the steps taken by the government so far, it becomes immediately apparent that the approach adopted with respect to the broader question of transitional justice is for the most part ad hoc and disjointed. The lack of a transitional justice policy, or a coordinated approach is a foundational problem for the accountability process in Kenya, which relates not only to addressing historical injustices since 1963, but also to a specific event - post electoral violence between 27 Dec 2007 and 28 Feb 2008. I have commented on the policy and political context in which this process is evolving in a working paper to Oxford University's Center for Socio-Legal Studies Transitional Justice Research Project, I will therefore not reproduce it here. Click on the title above, it will link you to that article ....

Friday, July 24, 2009

Truth Commission Created in Kenya

On 22 July 2009, the Kenyan President Mwai Kibaki has named a nine-person Truth Justice and Reconciliation Commission (TJRC) established under the Truth Justice and Reconciliation Act 2008. The Commission is apart of a bundle of reform measures (Agenda Four) agreed upon between the President 's Party and Prime Minister Raila Odinga's party after the disputed presidential elections of December 27, 2007. The violence claimed close to 1300 lives, billions worth of property destroyed and 500,000 people displaced.

The TJRC is mandated to inquire into historical injustices since 1963: gross human rights violations, abuse of power, corruption and economic crimes. A commission established to probe the post electoral violence recommended the creation of a Special Tribunal for Kenya (STK) to try those who bear the greatest responsibility for crimes against humanity allegedly committed during that period (Dec 27 2007 - Feb 28, 2008 when the National Accord was signed between Kibaki and Odinga to establish a Government of National Unity).

With the Prosecutor of the International Criminal Court (ICC) watching developments in Kenya, the government is divided on what should be done: whether the STK should be established or not; whether crimes should be tried before ordinary criminal courts in Kenya; whether in fact there should be no trials at all and the TJRC deployed instead. The appointment of the TJRC Commissioners came amid this rancorous debate in Cabinet. The question is whether the President sees the TJRC as the answer for calls for prosecutions either in Kenya or in The Hague at the ICC. If crimes committed during the post electoral violence amount to crimes against humanity, there is an imperative that trials be staged, at least in respect of the most responsible individuals. I say if because this question remains to be answered. While there is an assumption that such an international crime was committed, there seems to be no evidence in the public realm to back it up. The Waki Commission that recommended the establishment of the STK or ICC involvement and named several individuals (in a secret list recently handed over to the ICC by Koffi Annan) did not interrogate this issue at all. Reports by a number of civil society organizations (CSOs) and the Kenya National Commission on Human Rights are unhelpful on this issue.

It remains to be seen how this issue evolves. The relationship between the TJRC, STK and national courts is yet to be clarified in any detail although the STK's mandate will be limited to the post electoral violence.What seems sure is that the TJRC has an important role to play in at least shedding light on Kenya's troubled history.

Thursday, July 23, 2009

AU decision on Al Bashir Arrest Warrant Causes Uproar

This link is an audio file of an interview given to Alex Bell of Diaspora Diaries, examining the resolution adopted by the African Union (AU) on 3 July 2009 to ignore the arrest warrant issued by the International Criminal Court for Sudanese President Omar al-Bashir. I consider various issues and the complexities behind the AU's resolution.