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.