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: