Truth team: It’s not too late to snatch victory for victims

By Njonjo Mue

In the last two weeks, two important conferences have taken place to evaluate the importance of truth commissions in the search for justice for victims of human rights violations and promoting good governance.

On February 27 and 28, the National Victims and Survivors Network held a conference at Kasarani calling for implementation of the recommendations of the Truth Justice and Reconciliation Commission (TJRC).

This was followed a week later by an international conference at McGill University in Canada on the importance of truth and reconciliation commissions in promoting democratic good governance.

While formally unrelated, these conferences raise important questions about the role of truth commissions in consolidating democratic transitions.

The Kasarani conference brought together 65 Kenyan victims and survivors of human rights violations. Investigating these violations formed the core mandate of the TJRC.

The aims were to evaluate the TJRC report and explore strategies for pushing for implementation of its recommendations.

The conference provided victims and survivors with the first real opportunity to interrogate the outcome of the truth seeking process and discuss the status of the report and prospects for its implementation.

Of specific concern was that almost a year since the TJRC completed its work at considerable public expense, there had been deafening silence from the government on the fate of its report.

The TJRC Act provided specific timelines on the presentation of the report to the President, its publication in the Kenya Gazette, its tabling before Parliament, and the implementation of its recommendations.

The government was required to report periodically to Parliament on the progress of implementation. But none of this has happened.

REFUSED TO PUBLISH

Instead, the final days of the TJRC were marred by allegations of political interference with the report-writing; the President was three weeks late in receiving the report; the Government Printer has so far refused to publish it despite having been paid by the TJRC; and instead of facilitating the implementation of the report’s recommendations by establishing an implementation committee, Parliament amended the TJRC Act to give itself power to reopen the report to remove parts it did not like.

In this environment, justice for victims and survivors has become a mirage that seems to recede beyond reach with every passing day.

The gathering at McGill University brought together international experts to explore the factors that condition the success of TRCs in creating social cohesion as a foundation for democratic good governance.

They examined diverse national experiences including from Canada, which has an ongoing TRC to investigate the history and abuses of the Indian Residential School System.

There was common agreement that TRCs had become an important, if imperfect, tool to address past wrongs through restorative justice. But for a TRC to become effective, it should not be a process that merely creates more processes, nor should it be mere catharsis.

Rather it should lead to concrete action that begets true benefits and delivers real justice to victims through reparations and reform of abusive institutions. And to promote good democratic governance, TRCs should also contribute to genuine reconciliation.

Measured against these indicators, the Kenyan truth seeking process is at serious risk of failure. During its lifetime, the TJRC delivered little truth, justice or reconciliation, and the steps Kenya has taken so far in achieving good governance have been made in spite, and not because, of the TJRC.

But it is still not too late to snatch victory from the jaws of defeat for victims. The government could yet salvage the TJRC’s legacy by working in good faith to implement its recommendations.

The writer is a human rights lawyer and programme adviser for Kenyans with Peace, Truth and Justice

Published in Saturday Nation of 22 March 2014 and can be accessed here: http://mobile.nation.co.ke/blogs/Truth-team--It-s-not-too-late-to-snatch-victory-for-victims-/-/1949942/2252920/-/format/xhtml/-/37sfwez/-/index.html

It's Not Too Late To Save Truth Report

FRIDAY, MARCH 21, 2014 - 00:00 -- BY NJONJO MUE

In the last two weeks, two important conferences have taken place to evaluate the importance of truth commissions in the search for justice for victims of human rights violations and promoting good governance.

On February 27 and 28, the National Victims and Survivors Network held a conference at Kasarani calling for implementation of the recommendations of the Truth Justice and Reconciliation Commission.

This was followed a week later by an international conference at McGill University in Montreal, Canada, on the importance of truth and reconciliation commissions (TRCs) in promoting democratic good governance. While formally unrelated, these conferences raise important questions about the role of truth commissions in consolidating democratic transitions.

 The Kasarani conference brought together 65 Kenyan victims and survivors of human rights violations. Investigating these violations formed the core mandate of the TJRC.

The aims of the conference were to evaluate the contents of the TJRC report and to explore strategies for pushing for the implementation of its recommendations.

 The conference provided the victims and survivors with the first real opportunity to interrogate the outcome of Kenya’s truth seeking process and discuss the current status of the report and the prospects of implementation of its recommendations.

 Of specific concern was that almost a year since the TJRC completed its work at considerable public expense, there had been deafening silence from the government on the fate of its report.

The TJRC Act had provided very specific timelines as to the presentation of the report to the President, its publication in the Kenya Gazette, its tabling before Parliament, and the implementation of its recommendations which was to be overseen by a proposed Implementation Committee. The government was required to report periodically to Parliament on the progress of implementation. But none of this has happened.

Instead, the final days of the TJRC were marred by allegations of political interference with the report-writing process; the President was three weeks late in receiving the report; the Government Printer has so far refused to publish the report despite having been paid to do so by the TJRC; and instead of facilitating the implementation of the report’s recommendations by establishing the proposed implementation committee, Parliament amended the TJRC Act to give itself power to reopen the report to remove the parts that it did not like. In this environment, Justice for victims and survivors has become a mirage that seems to recede further beyond reach with every passing day.

The gathering at McGill University brought together international experts to explore the factors that condition the success of TRCs in contributing to creating social cohesion as a foundation for democratic good governance.

They examined diverse national experiences including from Canada which has an ongoing TRC to investigate the history and abuses of the Indian Residential School System; Argentina which had one of the first TRCs established in 1983; South Africa, whose TRC was among the most celebrated in the world and which has continued to provide inspiration for subsequent truth commissions; Sierra Leone; Australia; Northern Ireland; Guatemala; Brazil; Uruguay and Kenya.

 There was common agreement that TRCs had become an important, if imperfect, tool mandated by law to address past wrongs through restorative justice.

But for a TRC to become effective, it should not be a process that merely creates more processes, nor should it be mere catharsis.

Rather it should lead to concrete action that begets true benefits and delivers real justice to victims through reparations and the reform of abusive institutions.

And to promote good democratic governance, TRCs should also contribute to genuine reconciliation which may be defined as anything that that enables people to live peacefully together.

 Measured against these indicators, the Kenyan truth seeking process is in serious risk of failure. During its lifetime, the TJRC delivered little truth, justice or reconciliation, and the steps Kenya has made so far in achieving good governance have been made in spite, and not because, of the TJRC.

But it is still not too late to snatch victory for victims from the jaws of defeat. The government could yet salvage the TJRC’s legacy by working in good faith to implement its recommendations.

The writer is a human rights lawyer and a program adviser for Kenyans with Peace, Truth and Justice.

- See more at: http://www.the-star.co.ke/news/article-159714/its-not-too-late-save-truth-report#sthash.vafcZK3X.dpuf

As things fall apart...

'Things fall apart
The centre cannot hold'

Hapless shoppers are attacked
As they shop and dine in malls
Inquiries are promised
But never began
Road users die daily
In myriad incidents
mis-named accidents
Insecurity abounds
From the leafless North
To the leafy suburbs
The cost of living
Goes through the roof
With new taxes and levies
Everywhere.
In the midst of all this
The National Assembly
Suspends all other business
To discuss the important matter
Of who Should fly
The national flag
And which category of leaders
May use the title
'Your Excellency.'

'Things fall apart
The centre cannot hold.'

Mamdani is wrong, it’s not impunity that heals but justice

During a debate recently held at Kenyatta University, Prof Mahmood Mamdani spoke on the topic, “Can Courts End Civil Wars?” The main thrust of his argument was that during or in the immediate wake of conflict, criminal prosecutions should play no role in efforts to reconstruct society. I attended the debate and disagreed with Mamdani. I later set out my reasons in this opinion piece carried in the current issue of The East African.

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During a debate recently held at Kenyatta University, Prof Mahmood Mamdani spoke on the topic, “Can Courts End Civil Wars?” The main thrust of his argument was that during or in the immediate wake of conflict, criminal prosecutions should play no role in efforts to reconstruct society.

He argued that criminal violence should not be conflated with political violence because the latter has a constituency. He further stated that prosecuting perpetrators in the wake of political atrocities would exacerbate rather than solve the problem because political violence is not just driven by perpetrators, but by issues.

In light of recent and ongoing experience in many African countries where gross human-rights violations continue to be committed in the guise of contestation for political power, Prof Mamdani’s thesis is disturbing.

It comes dangerously close to giving political elites a blank cheque to commit atrocities against their own people and avoid accountability by claiming a political motive for their criminal activities.

While we must concede that criminal trials cannot by themselves end civil war, Prof Mamdani errs by going to the opposite extreme in suggesting that politics alone should take centrestage.

“The rule of law requires a stable political order,” he asserted during the debate, adding that politics always trumps the law in post-conflict societies.

However, the role of criminal prosecutions and accountability in the immediate aftermath of conflict cannot be gainsaid.

Empirical evidence shows that where there is no accountability for atrocity crimes, they are likely to recur. At the end of the decade-long Sierra Leone civil war, for instance, the first peace agreement signed in Lome in 1999 provided for a blanket amnesty for all actors in the conflict, but it was not long before vicious fighting broke out once again.

The government of Sierra Leone then requested the United Nations to facilitate the setting up of a Special Court to prosecute those most responsible for the atrocities.

The court indicted several high-level actors including rebel leader Foday Sankoh, who subsequently died in custody while undergoing trial, and former Liberian president Charles Taylor, who is currently serving a 50-year jail sentence for his crimes during the civil war.

Criminal prosecution of perpetrators was a key variable that contributed significantly to the ending of the Sierra Leone conflict and its transition to democracy.

Criminal accountability also helps a society to restore the rule of law and affirms the human rights of victims, thereby helping to reinstate the social contract and to send a clear message to victims that the state is able and willing to protect them.

Underlying most atrocity crimes is a narrative of dehumanising and disenfranchising of “the other.” Criminal accountability sends a clear message that all citizens are equal members of the polity deserving of equal protection from the law and not mere objects to be sacrificed at the altar of the search for political dominance.

Where victims’ needs for justice are left unaddressed, victim communities themselves become vulnerable to mobilisation by warlords to seek revenge against what they consider enemy communities.

However, isolating and prosecuting individual perpetrators individualises guilt and stops the cycle of communal violence.

The struggle for political stability in most post-conflict societies beginning in Latin America in the late 1970s and sweeping through Eastern Europe, Asia and Africa especially after the end of the Cold War has given rise to a new field of human rights termed transitional justice.

It refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human-rights violation.

These measures include prosecuting those responsible for human-rights abuses; establishing the truth about the nature of the violations; delivering reparations to victims; and implementing institutional reforms to change those institutions that aggravated or caused the conflict and creating new ones to promote human rights. 

None of these measures is sufficient in and of itself. Transitional justice mechanisms must be implemented in a comprehensive, mutually supportive and carefully sequenced manner.

But where crimes against humanity, genocide, war crimes and other gross violations of human rights have been committed, perpetrators must be held criminally accountable, no matter what the motive for their actions or the constituency that they purport to act for.

Njonjo Mue is a human-rights lawyer and a programme adviser to Kenyans for Peace, Truth and Justice

See article at this link: http://www.theeastafrican.co.ke/OpEd/comment/Mamdani-is-wrong--it-s-not-impunity-that-heals-but-justice/-/434750/2226690/-/item/1/-/129q54oz/-/index.html