Transitional Justice As Subterfuge

Transitional justice is trendy. After a civil war or political transition, the new government will often announce one or more of a variety of mechanisms for dealing with the past, such as a special tribunal or a truth commission.

What outside actors often forget – even though domestic actors may try to remind them – is that such mechanisms can be more about evading than ensuring accountability. Not all governments that establish post-atrocity justice institutions have actually made a clean break with the past.  Their senior officials may have been implicated in past abuses. Especially in cases of power-sharing arrangements, post-conflict governments may comprise individuals, including at the cabinet level, that are responsible for crimes against humanity committed during times of conflict. As a result, political elites may share an interest in continued impunity.

Kenya, a country where I have been conducting research for almost 15 years, provides a telling example of this problem and an innovative attempt to circumvent it. Over a period of two months, following the announcement of the highly disputed December 2007 election results, political violence caused the death of some 1,500 individuals, with up to 650,000 people forced to flee their homes and land (many of whom are still languishing in camps for internally displaced persons), and countless others harmed physically and psychologically, including through the widespread use of sexual violence. During this time, the state violently repressed peaceful demonstrators, and the police have been found responsible for about one-third of the deaths.

The severity of the post-election violence, images of which were spread by the media across the globe, prompted international mediation efforts, including by African Union representative Kofi Annan. The resulting power-sharing agreement definitively ended the violence and promised accountability. However, more than four years have gone by and not a single high-level, or even medium-level, official has been charged with a crime related to the post-election violence. In December 2011, Human Rights Watch detailed how it had been able to identify only six low-level convictions and three pending cases.

The Kenyan coalition government has steadfastly refused to engage in any serious attempt to try, let alone investigate, credible accusations against senior officials, despite its commitment to do so in the accord that put an end to the violence. It had also promised to implement the recommendations of a commission on the post-election violence, which included the establishment of a hybrid national/international tribunal to try those believed to bear the greatest responsibility. When the government failed to create the tribunal, Annan – following the commission’s recommendations – handed over evidence to the International Criminal Court (ICC) in the Netherlands, with a request that it initiate investigations.

The ICC also drew on a report by the Kenyan National Commission on Human Rights. As a direct result, Uhuru Kenyatta, former minister of finance and current deputy prime minister, and three other Kenyans are slated to stand trial at the ICC for crimes against humanity. The Kenyan government, however, is doing everything it can to try to prevent the cases from going forward, while failing to provide adequate assistance to the victims. It has repeatedly promised and reneged on its commitments to try accused perpetrators domestically. Instead, it devotes its energy to trying to abort the ICC process, including making futile attempts to get the Security Council to defer the ICC’s involvement and to convince African countries to withdraw en masse from the ICC. Ordinary Kenyans, however, seem to see through the government’s ploy. Opinion polls suggest a strong majority support the ICC.

As part of the agreement that ended the violence, the Kenyan coalition government did set up one transitional justice mechanism: the Truth, Justice and Reconciliation Commission (TJRC). It promised to establish a clear record of past abuses, dating back to independence from the United Kingdom in 1963, as well as promoting accountability and national healing. The government, however, has demonstrated little commitment to the commission. It accorded the TJRC insufficient independence regarding potential amnesties and prosecutions, did not provide it with sufficient and timely funding, and – in what was probably an act of sabotage – installed as its chair a prominent official from Kenya’s authoritarian past who has been accused of involvement in abuses in the 1980s.

The commission was widely perceived as an attempt to protect, rather than expose, those responsible for past crimes and, for that reason, was broadly denounced by Kenyan human-rights NGOs. Most western countries refused to provide support to the TJRC, in order to avoid legitimizing it, though the UN did support it. The commission was due to finalize its report by November 2011, but was given an extension until May 3 of this year. The deadline has passed, and the government will probably soon authorize another six-month extension.

Kenya’s parliament and cabinet contain many senior officials who are implicated in many serious crimes, including not only grave human-rights abuses but also massive corruption schemes. Though they may be political rivals and adversaries, they share a common interest in continued impunity. As long as these individuals control the means of holding people to account, it is hardly surprising that promises of transitional justice have yet to be more than a waste of time and money – and, quite deliberately, a smokescreen for the lack of meaningful action.

Given the Kenyan government’s clear lack of will to prosecute its own citizens, the ICC remains the only plausible alternative. Though there are valid critiques of the ICC, including its high cost, its lengthy processes, and its focus solely on African cases to date, they do not justify letting alleged perpetrators of crimes against humanity walk free without a credible trial. The court will not obtain more than four convictions for the post-election crimes of 2007-08, but Kenyan transitional justice is unlikely – at least in the foreseeable future – to hold even one person accountable for organizing and financing the violence.

Transitional justice is unlikely to be effective when there is no convincing break with past practices, and when alleged perpetrators remain in positions of power – in short, when there has not been a decisive transition. Even where a totally new government is in place, especially after armed conflict that resulted in one side’s victory, what is termed transitional justice may actually legitimize what is essentially victors’ justice.

The case of Kenya reminds international actors to be cautious about supporting new proposals for transitional justice. Astute political analysis is required to ascertain which proposals are sincere – and worthy of support – and which ones are basically exercises in subterfuge that seek to gloss over the very abuses they are meant to address. Domestic actors, especially human-rights NGOs, are often the best sources of analysis to help make those decisions and avoid jumping on a transitional-justice bandwagon that lacks credibility, as was the case for the TJRC. The Kenyan example also illustrates how domestic actors can, under some circumstances, facilitate international justice when faced with a lack of credible domestic mechanisms required to ensure accountability for atrocities. The results are eagerly awaited and the stakes are very high, not least because Kenyatta is a plausible candidate in the next presidential elections, to be held by March 2013.

Photo courtesy of Reuters