Ndung'u Wainaina
10 October 2008
opinion
The peace agreement signed early this year recommended the setting up of transitional justice mechanisms, a comprehensive constitutional review, land reforms, institutional transformation and socio-economic change.
But although laudable, these processes seem to be overly ambitious in the current fragile political environment.
It is also necessary not to compromise them and jeopardise their independence and potential impact on the consolidation of democracy and sustainable peace.
While the pact provides for the formation of mechanisms to address past ills, impunity, institutional failure and structural inequalities and poverty, there is not enough information for the design and structure of these processes.
All of them ought to adequately involve the principal interested party -- the Kenyan people.
While a new democratic constitution is necessary for the provision of the framework for cementing State-citizen relations, transitional justice mechanisms are prerequisite instruments that give teeth and effectiveness to the framework.
It is, therefore, important to get the correct foundation for each process right from the start.
Lobby groups
It should be stressed that transitional arrangements are not permanent; they are only facilitative. Kenya's power-sharing deal must be viewed in this context.
The long debates on the constitutional review have allowed ordinary Kenyans to understand the basic importance of a sound, legitimate and democratic set of laws. Unfortunately, transitional justice is still at its infancy.
Lobby groups such as the Kenya Human Rights Commission, International Centre for Policy and Conflict, Mazingira Institute, Urgent Action Fund-Africa and Fida-Kenya as well as statutory ones like the Kenya National Commission on Human Rights and Kituo Cha Katiba have been at the forefront of driving the transitional justice agenda, although with mixed reactions.
Although a relatively new concept, transitional justice has been adopted across the world, including at the UN where the Peace-building Commission has been established to help countries through transition.
Truth commissions are usually confused with transitional justice. The latter refers to all processes and institutions such as truth commissions and special tribunals established to tackle human rights violations, injustices and impunity.
The national reconciliation ending the post-election violence proposed the establishment of a truth, justice and reconciliation commission, a commission of inquiry into the violence and an independent review commission to look into the December 2007 elections.
The investigations were expected to give birth to some accountability.
Specific steps can be taken to promote transitional justice mechanisms and their application.
Key would be creating a network comprising representatives of the Government, lobby groups, National Human Rights Commission, victims and international actors to conduct broad-based public education campaigns and consultations, establish and publish a timeline for action, increase coordination and collaboration between the relevant local and international organisations as well as increase practical support by the Government and lobbies.
Transitional justice issues are long-term essential building blocks for Kenya's sustainable peace, so there is a need for assistance and capacity-building programmes.
Preventing future human rights violations and promoting social reconstruction is a critical element of transitional justice, whose processes do not just deal with the documentation of violations, but also seek ways to prevent a recurrence.
This is why their primary target are institutions that are either the source of serious and systemic human rights violations or key to the enactment of laws and policies that deter a recurrence.
Security sector
In May 2005, the UN worked with the International Centre for Transitional Justice to publish a series of transitional justice tools that set international standards for either seeking accountability or reforming the make-up and operational foundations of abusive State institutions.
For instance, a justice-sensitive approach to the security sector reform is guided by the following aims -- building institutional integrity to discourage abuses and empowering all citizens, especially victims of State oppression and conflict-related violence.
It helps to re-establish civic trust, re-legitimise security agencies and dismantle structures within which individuals commit serious human rights abuses.
If investigations reveal the existence of a deliberate and systematic plan by the Judiciary and the security agencies to execute a policy of concealing repression -- and this has been used by dictatorships to emasculate and silence critics or eliminate undesirable characters -- accountability mechanisms may be set in motion.
NGOs and the state human rights organisation might need to realise the right of victims' families and society as a whole to know the truth about forced disappearances, for instance.
Since court trials normally have limitations, human rights organisations can use "truth trials" to search for information on the whereabouts of the disappeared people.
In Kenya, the impunity witnessed in the past 45 years since independence calls for standards for enforcing the principles of justice as contained in the international human rights law.
In Kenya, transition is gravely misunderstood, and it takes on a specific meaning because it has been ongoing for years.
From constitutionalised dictatorship to democracy, transition must alter not only the institutional and political approach to the regime's crimes, but also the contents of the ethical and moral debate as well as the chances of transforming the abusive State institutions.
Public policy
The absence of a public policy on the fight against impunity has created conditions that make life in democracy unbearable.
For example, the continued systematic practice of violence as well as extrajudicial killings and torture by the security forces are the result of lack of effective and credible institutional mechanisms.
Besides, laws barring holding an office for reasons of grave violation of human rights will underpin the post's moral and ethical requirements.
Developing transitional justice mechanisms to reform the administration will need to be mindful of the controversy they will spark.
It will have to face the challenge of defining the criteria for apportioning responsibility for past crimes and ensuring that the reforms abide by the democratic principles.
The principles cover more than the specific issue of the crimes of dictatorship, and include the participation of various public administration institutions and lobby groups in decision-making as well as allowing public access to information on the nature of the processes.
Transitional justice is not about getting everyone to hug one another; it is making sure that human rights abuses do not happen again.
The writer is the executive director of the International Centre for Policy and Conflict
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