Extending Justice Beyond ICC Prosecutions

Tuesday, 11 February, 2014

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an IWPR reporter in Kenya

While formal prosecutions at the International Criminal Court (ICC) and at national level go some way towards drawing a line under conflict, they do not automatically result in reconciliation on the ground. Legal experts have told IWPR that the international community should be doing more to support alternative mechanisms that might contribute to a sustained peace.

At the recent meeting of the 122 states that have signed up to the ICC, held in November, campaigners challenged the Kenyan government, in particular, to put measures in place at local level to complement the ongoing judicial process in The Hague.

Kenyan president Uhuru Kenyatta faces trial at the ICC on charges of orchestrating the bloodshed which followed a disputed presidential poll in December 2007. Deputy President William Ruto and journalist Joshua Arap Sang are already on trial for similar charges.

Ruto and Kenyatta were on opposing sides in the 2007-08 conflict, which quickly took on an ethnic dimension. More than 1,100 people were killed and 650,000 lost their homes as a result. Kikuyus were broadly supportive of Kenyatta and the Party of National Unity, while Kalenjins, Luos and others backed the Orange Democratic Movement, in which Ruto was a leading figure.

When Kenyatta and Ruto were voted into power on a joint ticket in March 2013, this was advertised as a sign of political reconciliation. But in the western Rift Valley, where much of the violence was concentrated, that political settlement did not translate into inter-communal harmony. Many people have never returned to the homes they had to flee. (See Old Tensions Persist in Kenya's Rift Valley.)

As a woman in the Rift Valley who lost a close relative in 2008 told IWPR, “Genuine reconciliation is when two people directly involved in a conflict decide to face each other, acknowledge their wrongs, and choose to forgive one another and move on. Sadly, this has not been the case in the country.”

She noted that while those now in high office claim that reconciliation is a reality, that is not visible where she lives.

“Common people who were uprooted from their lands are still crying for justice,” she said. “And as long as the land question remains unresolved, bitterness will continue stoking [tensions].”

Longstanding claims and counter-claims to land in this part of Kenya made the conflict between communities particularly acute.

Alex Whiting, a law professor at Harvard University, says more international support is need to bolster efforts to healing rifts between communities like those in the Rift Valley.

“Prosecution should not be the only mechanism that must be considered; it has to be one of the many mechanisms,” he said. “There is a need to develop other local forms of resolving conflict as other ways of getting justice for the victims, and the international community should consider supporting such measures.”

ALTERNATIVE MECHANISMS

Courts like the ICC or national judiciaries are designed to apply uniform standards of criminal justice, but when it comes to informal mechanisms, context is key.

“The most important role the so-called international community can play is fostering an openness towards alternative conceptions of, and routes towards, justice,” Sarah Nouwen, a legal professor at Cambridge university, told IWPR.

Nouwen acknowledges the work done by the ICC’s Trust Fund for Victims, which has a mandate to provide long-term support to victims of crimes in areas where the court is carrying out investigations.

Although the Trust Fund for Victims is currently supporting projects in northern Uganda and the eastern Democratic Republic of Congo, there are no plans to extend its work to Kenya. In Nouwen’s view, this limited scope and the way resources are divided between the fund and the ICC’s prosecuting arm “shows which type of justice currently has priority”.

Traditional justice mechanisms have been used in some post-conflict environments – for instance the open “gacaca” courts designed to bring closure to the Rwandan genocide, and the ritual known as “mato oput” which allows former members of the Lord’s Resistance Army (LRA) to be accepted back into the community in northern Uganda.

After the ICC issued arrest warrants against senior LRA leaders, foreign donors provided support for “mato oput” ceremonies.

Nouwen warns that this kind of funding can undermine rather than strengthen the process.

“While facilitating the conduct of such processes and enhancing the purchasing power of those that perform them, the commercialisation of ceremonies also undermines their meaning and relevance,” she said.

Transitional justice policy in Uganda has been largely donor-driven, so that “support for the alternative mechanisms lasts as long as the donor money lasts”, she explained.

“The key thing, then, is that the primary driver of the process is the government's policy, and that donor money only helps in implementing that policy,” she said.

At the November meeting of ICC member-states, a representative of the South African delegation said his country would have descended into turmoil if there had been criminal prosecutions after the end of apartheid in the early 1990s.

Instead, those who had committed human rights abuses were able to claim amnesty from prosecution in return for testifying before the Truth and Reconciliation Committee.

“We all know what South Africa went through, and had there been trials after the apartheid we would not have a country today,” he said. “Without a political settlement after apartheid there would have been continued conflict.”

The attorney-general of Namibia, Albert Kawana, echoed this view, explaining that while international prosecutions had a role, they could not by themselves deliver the broader sense of justice that leads to long-term peace.

“It’s important [to have] international courts, but alternative dispute resolution mechanisms are very imperative in seeking reconciliations,” Kawana told IWPR on the sidelines of the meeting. “Peace and reconciliation is more important for the victims than the prosecution of one person.”

KENYA RISKS MISSING OPPORTUNITY TO EMBED RECONCILIATION

In Kenya, the government has been accused of lacking the political will to foster reconciliation at the local level in parallel with the ICC cases.

After a political settlement brought an end to the 2007-08 bloodshed, the government set up a committee to examine injustices dating all the way back to independence in 1963.

The Truth, Justice and Reconciliation Commission (TJRC) was viewed as a major step towards a public acknowledgement of, and forgiveness for, past abuses. But although the commission released its report in May 2013, its recommendations have yet to be implemented. (See Kenyan Authorities Urged to Implement Human Rights Report.)

The Kenyan parliament has even passed a bill allowing legislators to alter the content of the report. This leads some to suspect the government of undermining the TJRC’s work and ignoring some of its findings.

“TJRC provided a very good framework with specific mandates to have a candid conversation with ourselves on how to approach and address issues of injustice,” George Morara, senior programme officer at the Kenya Human Rights Commission, told IWPR. “Its report made very significant contributions and recommendations, but again the government, instead of adopting and making it a reference point in addressing the country’s historical violations, wants to open a window to alter its content.”

Morara said that some strategies that the government had adopted to reconcile or compensate communities were likely to backfire. While measures to resettle people evicted from their land during the 2007-08 were praiseworthy, they also set a “dangerous precedent”.

“What you are telling those who evicted them is that in terms of acquisition of property rights, it is [fine] to just evict somebody you don’t like, and the government will resettle them,” he said.

Betty Okero, a coordinator with the Civil Society Organisation Network in Kenya, argues that just speaking about past abuses is not enough.

“Acknowledgement and forgiveness is crucial to achieving genuine healing and reconciliation. This allows both parties involved in a conflict to reflect and vent out,” she told IWPR. “But without a genuine political will, it becomes very difficult for such processes to realise [their] intended objectives.”

NGOs that promote justice and reconciliations initiatives on the ground want the international community to be more heavily involved, applying funding, guidance and political pressure.

“There is a need for the international community to consult much more regularly and in a much more structured manner with civil society,” Chris Gitari of the International Centre for Transitional Justice in Nairobi said. “We don’t get the signs that we are in those communication channels that allow a regular review of the issues.”

Gitari said the international community could do much more to pressure for the TJRC’s recommendations to be implemented in full.

“They need to be much more vocal,” he said.

He believes foreign governments have been over-hesitant as they try to work out their approach to Kenya in the light of the new Kenyatta-Ruto administration.

“I do get the sense that trying to see what the priorities are, the new regime has this approach of not being very comfortable with human rights questions,” he added.

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.