A Critical Discussion of the Success of Past Transitional Justice Approaches in Kenya for Securing Peace and Reconciliation

By Anna Skinner

Anna Skinner is a graduate of the University of Leeds where she completed a BA International Development. Her research, professional and personal interests include migration trends, as well as issues pertaining to gender.

Abstract

Kenya’s 2007 election results sparked two months of grave violence. This article analyses Kenya’s response to the violence, and specifically the success of transitional justice approaches for achieving peace and reconciliation post 2007-2008. The article explores the important role that Kenya’s socio-political context played in the post-election violence, such as Kenya’s history of societal restructuring, favouring certain ethnic groups, which created the interrelation of ethnicity and politics and fostered ethnic tensions. Transitional justice approaches – including the Truth, Justice and Reconciliation Commission, a Special Tribunal, and eventually, the International Criminal Court’s intervention – lacked the support of Kenya’s leaders. This paper argues that, fundamentally, transitional justice efforts were impeded in achieving positive peace by failing to address socio-political symptoms. The article concludes that the inherent and enduring structural violence within institutions, policies and society hinders the ability to achieve lasting peace and reconciliation.

The discussion of this paper focuses on the response to the violence that occurred in Kenya after the 2007 elections. After the announcement of the election results, Kenya experienced two months of violence, which resulted in over 1000 deaths, hundreds of thousands of displaced people, buildings destroyed, and numerous acts of physical and sexual violence (Gibson and Long 2009, p.1, 5).

After outlining various terms useful for analysis, this article will look at the socio-political context in the preceding years of the 2007 elections, which laid foundations for the violence. This included the ethnically-based restructuring of society and land reforms. As a result, ethnicity and politics became closely intertwined, which contributed to creating a breeding ground for ethnic tensions. Next, the article will discuss some strategies used to gain political support in 2007 and the ensuing election violence. Then, the article will critically discuss the success of transitional justice approaches across post-conflict years – such as truth commissions and tribunals – to achieve peace and reconciliation in Kenya. It will analyse how and why socio-political factors impacted on the failure of long-term peace and reconciliation efforts.

The argument that this paper puts forward is that that Kenya’s transitional justice efforts failed largely due to the lack of commitment to address socio-political factors such as the ethnically based structural violence that still permeates society, which has impeded the ability for peace and reconciliation. The article also argues that the lack of support from Kenyan leaders has been a barrier to the success of peace and reconciliation efforts, and will continue to limit transitional justice attempts.

Definition of key terms

To clearly evaluate the success of past approaches to transitional justice for achieving peace and reconciliation, it is important to clearly understand the terms referred to.

Transitional justice is a society’s approach to justice in a transition period after conflict and human rights abuses have occurred, to achieve societal transformation in the form of democracy, peace and reconciliation (ICTJ, 2009). Reconciliation (as a process and end goal) can be defined as the movement of a society “from a divided past to a shared future” (Bloomfield 2003, p.12).

It is helpful to think about peace by thinking about violence, both of which can be thought about in two dimensions: positive and negative peace, and personal/direct violence and structural violence. In the past, peace has been considered “the absence of violence”, referring mainly to visible and direct forms of violence (Galtung 1969, p.168). Going a step further, negative peace is considered the “absence of organised personal/direct violence” (Galtung 1967, p.12; 1969, p.183), while positive peace is understood as the “absence of structural violence” or of social injustices and inequalities (Galtung 1969, p.183). Therefore violence cannot be simply seen as visible violent manifestations with a physical perpetrator – known as direct/personal violence (whilst not wishing to belittle these) (Galtung 1969, p.170). Structural violence relates to structures such as institutions and policies in society that favour certain social groups (based on class, ethnicity, gender) and oppress others, fostering and reproducing inequalities (Galtung 1969, p.170; Gready et al 2010, p.1; Cockburn 2004, p.43).

Cockburn further expands on theories of violence, arguing (specifically in relation to gender relations) that instead of viewing violence as a “single event”, it is better to look at it as a “continuum of violence” which occurs in social, economic and political areas of society (2004, p.43). By this she means that structural violence, specifically, is a constant present feature of societies that does not just occur and then not occur as physical violence does (2004, p.43).

Peace presents an interesting debate – particularly in contexts seeking justice – regarding whether peace is necessary for justice to be achieved or whether justice is required first to enable peace to prevail (Oette 2010; Ellis 2006, p.113). This is much debated within transitional justice institutions such as the International Criminal Court (ICC) (Kerston 2014).

Kenya’s Pre-2007 Context

Part of understanding the violence that took place in 2007-2008 requires understanding the socio-political context in the years, and even decades, preceding this particular period of violence. Kenya’s violence (historically, and in 2007) was rooted in ethnic tensions, which were intertwined with tensions and injustices around politics and resources, specifically land (Ndungú 2014). This is largely owing to Kenya’s colonial inheritance, the structures and mentalities established by previous colonial administrations, which still prevail (Nyawalo et al, 2011, p.36).

Like many former colonies, Kenya experienced significant ethnically based restructuring, which divided the country into ‘tribes’ primarily for ruling purposes (Nyawalo et al, 2011, p.36; De Smedt, 2009, p.583). The colonial and post-colonial government also reformed land distribution through processes like settlement schemes based on ethnicity (Kanyinga, 2009, p.326) and via networks of patronage, whichin post-colonial years were also closely based on ethnicity, in return for support (De Smedt, 2009, p.583). Therefore “ethnic groups became political tribes” (De Smedt, 2009, p.583). This meant that land and politics were “ethnicised” from early on and, so, inequalities surrounding land distribution also had ethnic lines (Kanyinga, 2009, p.326).

Given that ethnicity permeated other areas of Kenyan society, it inevitably became a big feature of political divides at local and government level. As Kanyinga argues, this “laid a firm foundation for political conflict”, which Kenya experienced on several occasions even before 2007 (Kanyinga, 2009, p.326). Inequalities in Kenya have subsequently also historically been heavily based on ethnic groups, with several previous administrations (including Mwai Kibaki’s governments in power at 2002 and 2007 elections) favouring the Kikuyu people (Nyawalo, 2011, p.34). This has been particularly prevalent in issues over land, with land disputes and other tensions between Kalenjin and Kikuyu communities spanning for years (Roberts, 2009, p.14). For example, when the colonial administration handed power over to President Jomo Kenyatta, land previously seized by the government (in areas such as the White Highlands) was left in the hands of Kenyatta’s government leaders and was distributed among their ethnic patronage networks, which mainly favoured Kikuyu (Rawlence and Albin-Lackey, 2008).

Therefore those of the Kalenjin tribe and other smaller tribes have experienced structural violence through unequal land access, rights, and regarding distribution of and access to other resources. As a result, ethnic groups have been deliberately and strategically encouraged to compete against each other. Berman describes this as “political tribalism” (1998, p.305; De Smedt, 2009, p.584). This competition creates greater identification with one’s ethnic group, by emphasising the distinction between ‘us’ and ‘them’; the fortunate and the less fortunate who miss out on access to these resources (Berman, 1998, p.327).

With the knowledge of the prominent ethnic divisions and structural violence experienced, one can better understand the way political leaders have tactfully harnessed support during election times.

Post-election Violence

The violence that followed the 2007 election results was partly a response to the election result, and partly promoted by strategies used to acquire political support, which emphasised grievances and ethnic injustices amongst Kenyans.

Commonly used strategies have been based on ethnicity and patronage networks to distribute resources that those in power have access to, to cronies within these networks (which in Kenya tend to be ethnically based). During elections, populist strategies have commonly been implemented, using injustices such as deprivations or negative public feeling to gain the united support of a group of people against ‘others’, united by deprivations (Albertazzi and McDonnell, 2008, p.3; Cheeseman and Larmer, 2013, p.1). In Kenya’s 2007 elections (and at other critical times), ‘ethno-populism’ was used, uniting certain ethnic groups based on their ethnic exclusion and grievances, against other ethnic groups such as the Kikuyu supposedly responsible for the grievances and structural violence experienced (Cheeseman and Larmer, 2013, p.1).

After Kenyans had gone to the polls, the Electoral Commission of Kenya (ECK) was notably late in announcing who had won, but eventually they announced the Party of National Unity (PNU) and Mwai Kibaki’s victory, despite “rumours of rigging and malpractice” (Gibson and Long, 2009, p.1; Roberts, 2009, p.3; Jenkins, 2012, p.576). There were considerable doubts regarding the legitimacy of the outcome and the fairness of the process including the vote-counting, which, combined with frustrations with political leaders’ false promises, sparked violence (Jenkins, 2012, p.576; Mueller, 2008, p.194; Roberts, 2009, p.4).

The two months of violence that took place involved and affected all kinds of people at different levels of the society (Gibson and Long, 2009, p.5). However, it was largely divided along ethno-political lines, with supporters of the opposition, the Orange Democratic Movement (ODM) targeting Kibaki’s supporters, and vice-versa retaliation (Jenkins, 2012, p.576). This period saw over 1200 deaths and at least 350,000 displaced (Gibson and Long, 2009, p.1; Roberts, 2009, p.2; Jenkins, 2012, p.576). Other violence included lootings, destroying properties, driving people out of their communities, physically and sexually attacking people, and police shootings to deter or stop demonstrations (De Smedt, 2009, p.590; Rawlence and Albin-Lackey, 2008).

Transitional Justice Approaches in Kenya

In response to this violence, Kenya established a Commission of Inquiry into the Post-Election Violence (CIPEV) – also known as the Waki Commission – with the purpose of investigating the post-election violence’s causes and consequences (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30). The Waki Commission recommended establishing a Truth, Justice, and Reconciliation Commission (TJRC), and a Special Tribunal, to allow deeper investigation and prosecution of individual cases as well as police reforms (Thomson and Kihiker, 2017, p.5).

The recommended TJRC, although swiftly established in 2008, had limited success given the lack of a lack of wide awareness of its report (Ndungú 2014, p.2; TJRC, 2013, p.1). One success was that the TJRC did conduct public hearings, which allowed victims, witnesses and perpetrators to present their stories (TJRC, 2013, p.1). However, the report – outlining findings including perpetrators, and recommendations including reparations – experienced significant delays in being published, which also delayed implementing its recommendations (Thomson and Kihiker, 2017, p.6, 9; Asaala and Dicker, 2013, p.341). Part of these delays came from people in positions of power who were named in the report as perpetrators, who managed to stall the approval of the report and mobilise support against it (Thomson and Kihiker, 2017, p.9).

The Special Tribunal, intended to be composed of Kenyan and international judges, was never established (Asaala and Dicker, 2013, p.345). Likely reasons are that it was never pushed by Kenyan politicians due to fears of political corruption or of being personally prosecuted (Thomson and Kihiker, 2017, p.5; Mueller, 2014, p.30; Brown and Sriram, 2012, p.252). After endless delaying-tactics and lack of commitment by Kenyan political leaders, the failure to implement this recommendation mandated the ICC to intervene and begin its investigation (Mueller 2014, p.30; Thomson and Kihiker, 2017, p.5)

The ICC’s investigations began in 2010 and involved six of Kenya’s political leaders believed to have played some role in the 2007 post-election violence (Endoh and Mbao, 2016, p.276). In 2012, then Deputy Prime Minister Uhuru Kenyatta and MP William Ruto were among four of the six charged with crimes against humanity, while simultaneously campaigning for presidential election the following year (Endoh and Mbao, 2016, p.277). Along with other political leaders, Kenyatta and Ruto were actively and outspokenly against the ICC’s involvement, not co-operating nor providing evidence (Mueller, 2014, p.25, 31). They framed the ICC as a neo-colonial, western imperialist power (Lynch, 2015, p.188; Mueller, 2014, p.31). These political leaders were also found to have bribed and intimidated witnesses testifying against them, in attempt to weaken the case against them (Mueller, 2014, p.33-34).

This was considered by the ICC investigators their most challenging case yet, largely due to various methods of resistance by Kenya’s government and leaders (Mueller, 2014, p.26; Hansen 2016). Although Kenya permitted these investigations taking place, political leaders strategically strived to limit the ICC’s ability to successfully and thoroughly investigate the cases (Mueller, 2014, p.26;). Eventually, Kenyatta’s case (and others’) collapsed (Hansen, 2016).

Criticisms and Limitations of the Transitional Justice Approaches in Kenya

The ICC’s involvement as a transitional justice method has had questionable success in terms of achieving justice, and even more questionable success in achieving peace and reconciliation. Ellis (2006, p.113) argues that justice is needed for lasting peace to be reached. However, many consider the ICC to have prioritised justice at the expense of peace and reconciliation, and failed even at achieving justice through retribution efforts that attempted to punish high-level orchestrators of violence (Lynch, 2014, p.107; Lynch, 2015, p.186; Tambe Endoh and Mbao, 2016, p.279-280).

After giving Kenya’s leaders several chances to follow through with promises of domestic-level investigations, the ICC Prosecutor opened a proprio-motu investigation, at his own discretion (Mueller, 2014; Hansen, 2016). The ICC reserved the right to intervene due to Kenya’s theoretical commitment to the Rome Statute, the Court’s founding treaty. However, the ICC intervention never received genuine support from the Kenyan government, despite Kenya being a signatory to the Rome Statute.

There are claims that the ICC did not carry out investigations thoroughly, relying too much on the Waki Commission’s and other investigations’ findings (Lynch, 2015, p.186). Others claim that the ICC was biased towards certain political leaders. For example, Raila Odinga (leader of the ODM party) was not included in the six named to be investigated, despite rumours that he was involved in inciting the 2007-08 violence (Lynch, 2015, p.186; Jenkins, 2012, p.576). On similar lines, some have suggested that Odinga and other politicians who approved of the ICC’s investigation, may have done so primarily for political motives, since they were not tainted as the ‘baddies’, and, with the 2013 elections approaching, Odinga particularly may have seen it as a way to acquire political backing, rather than for the purpose of achieving peace, justice and reconciliation (Lynch, 2015, p.186).

Interestingly, while leaders such as Kenyatta and Ruto did not support the ICC’s involvement in Kenya, during their campaigns for the 2013 elections the anti-ICC rhetoric provided a tool for acquiring support for a new Jubilee Alliance (which comprised Kenyatta and Ruto, the representatives of the two previously opposing ethnic groups Kikuyu and Kalenjin) (Mueller, 2014, p.25-26; Lynch, 2015, p.188). This alliance justified claiming they were the ones truly committed to bringing peace and reconciliation to Kenya, while the ICC’s approach was biased, based solely on punishment and justice, and therefore Odinga supporting the ICC’s ‘side’ tarnished him with the same brush (Lynch, 2014, p.107; 2015, p.188).

Thus, while perhaps not how expected, the ICC’s involvement in Kenya provoked a situation of reconciliation to some extent, uniting once warring groups in the new alliance. The anti-ICC and pro-Jubilee rhetoric also promoted a peaceful, anti-violence period around the 2013 elections, which possessed a much stronger emphasis on peace, with urges for peaceful elections coming from not only political leaders, but other positions of influence (Lynch, 2015, p.184). However, this does not necessarily reflect that lasting and sustainable peace and reconciliation had been established (Gready et al., 2010, p.2). It could have been politically motivated, with the hope that the Jubilee Alliance setting a good example of peace and reconciliation around this political event would secure them greater voting support.

A major issue with the transitional justice approaches undertaken in Kenya is that they placed greater emphasis, time and resources into efforts that would treat the symptoms of the violence, rather than addressing its roots, the socio-political factors that caused the violence (Gready et al., 2010, p.1). Therefore it seems that only negative peace was achieved in the years of transitional justice and peace building efforts following the 2007 post-election violence, owing to the absence of direct violence. Despite this, positive peace was not achieved since structural violence is still a prominent and pervasive feature of society.

Structural violence within Kenya in the form of ethnic exclusions in land and opportunities felt by ethnic groups such as the Kalenjin and minority groups was significant in conceiving the anger and injustice people felt which fuelled the outbreak of physical violence. Several scholars argue that while structural violence and these exclusions remain unaddressed and still “persist in Kenyan society and consciousness, the potential for violent confrontation between groups remains high” (Jenkins, 2012, p.596; Lynch, 2014, p.98). Thus, the ability for positive peace and reconciliation to prevail was and is limited, as long as these ethnic exclusions create high potential for violence.

To this end, transitional justice approaches should have addressed the exclusionary narratives felt by civil society, as well as narratives of ethnicity and exclusion inherited from past regimes that were played upon by political leaders (Cheeseman and Larmer, 2013, p.1). Several scholars and observers have argued that a transformative justice approach would have been more successful than transitional justice approaches (Gready et al., 2010, p.1; Gready and Robins, 2014). Transformative justice seeks to address and see transformation in the unequal structures of society, which (in Kenya and other countries) have facilitated and catalysed physical violence (Gready et al., 2010, p.1; Gready and Robins, 2014).

Moreover, it has become widely known that political leaders at the highest level and at local levels were involved in orchestrating and encouraging the violence, as will be discussed. ODM and PNU supporters alike arranged meetings and raised funds to facilitate the violent reaction (PNU supporters mobilised Kikuyu militia in retaliation to ODM supporters who attacked), particularly in Nairobi’s slum areas and the Rift Valley where many of the land disputes exist (Rawlence and Albin-Lackey, 2008). The ODM, particularly, mobilised groups of young people who were already angry at politicians’ false promises about their future prospects’ (Roberts, 2009, p.11). The police also committed hundreds of atrocities, by opening fire on unarmed civilians and children and shooting to stop demonstrations or even prevent and deter them from happening (Rawlence and Albin-Lackey, 2008). Reforms within the armed forces were needed in order for the potential for future violence to be minimised (particularly around the 2013 elections) and for peace and reconciliation to truly be a possibility (Lynch, 2014, p.98; Ndungú, 2014, p.5).

Additionally, by 2007, a present feature of society was gang violence, and political leaders in the past and at this time, had hired gangs to ‘deal with’ opposition supporters and carry out violent attacks or retaliations (Mueller, 2008, p.194; Ndungú, 2014, p.6). This presented difficulties regarding investigating situations involving people in positions of power, since they are the ones holding or with access to the required information (Ndungú, 2014, p.6; Brown and Sriram, 2012, p.258). Leaders’ reluctance to cooperate in investigations that put their power at stake reflects a lack of commitment at the higher level within Kenyan society in bringing justice and peace in Kenyan society post-conflict (Ndungú, 2014, p.6,10).

Thus, what has developed is a lack of trust among society, significantly in officials and institutions, including the judiciary, due to past experiences of institutional failures, ethnic oppression, and politicians’ false promises, corruption and biases within the police (Thomson and Kihiker, 2017, p.20). This raises issues about how effectively peace can be achieved, if corruption and inequalities exist within institutions and politics. Returning to the peace versus justice debate, Ellis’ argument that “there can be no lasting peace without justice, and justice cannot exist without accountability“ (2006, p.113), suggests that the impunity, lack of accountability or transparency within Kenya’s leaders, heavily impedes on the ability to achieve sustainable peace and reconciliation.

Conclusion

While the post-2007 years saw a period of negative peace without similar violence recurring, the transitional justice efforts were not successful in terms of achieving positive peace, addressing deep-rooted inequalities and injustices in the Kenyan society. The structural violence deeply ingrained in the Kenyan society needed addressing in order to deal with the root causes of the violent outbreak. With Cockburn’s “continuum of violence” in mind (2004, p.43), one can better understand how addressing structural violence in Kenya requires targeting all areas of society. In Kenya, it is vital to consider how and where (for example in politics, economic opportunities, land rights) structural violence has historically affected and presently continues to affect society and social groups, such as the Kalenjin.

Moreover, the transitional justice methods, such as the ICC’s intervention and the TJRC, needed the support of all actors within society, particularly those in positions of influence. These peace, justice and reconciliation efforts that should have addressed the structural violence, needed endorsement from above, by political leaders, in order to see a ripple effect in wider areas of society to potentially change exclusions and divisions. Without addressing structural violence and without influential people advocating for this change for the sake of peace and reconciliation, the potential for violence in Kenya remained and will remain high, while the potential for positive peace remains low.

Thus, transitional justice should be part of a broader effort that strives to build peace in Africa – and in this case in Kenya. Justice is required to some extent in order to provide accountability for crimes committed, however, other efforts that address reconciliation and peace should not be discounted at the expense of solely achieving retributive justice. In cases such of that of Kenya, achieving post-conflict peace and reconciliation involves identifying, challenging and reforming areas of society where structural violence prevails. By doing this, the potential for conflict to be triggered is limited as injustices and anger are minimised, allowing peace to be more profoundly and genuinely achieved.

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