An evaluation of the effectiveness of the transitional justice process in Kenya since the 2007-2008 post-election conflict
Kamau, Caroline Wairimu
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The concept of transitional justice keeps changing as the concept of conflict changes. The paper analyses the transitional justice process in Kenya after the 2007-2008 Post-Election Violence. Very little has been written on the success or failure of transitional justice in Kenya after eight years of the implementation of transitional justice mechanisms which included truth commission, criminal prosecutions and recommendations on reparations. Furthermore, the architects of Kenya’s transitional justice process failed to put in place a mechanism against which the progress of transitional justice could be measured. It was therefore necessary to analyse the overall transitional justice process in Kenya to determine its efficacy. Kenya’s transitional justice process seemed to be a stand-alone occurrence with no ties to the laws or the various institutions in the country compared to Uganda's national transitional justice policy. The transitional justice process as a whole did not assign rights and responsibilities to the public, the three arms of government, the devolved governments, civil society or non-governmental organisations so that the various stakeholders could then check and balance each other with the aim of ensuring that transitional justice would be implemented. To date, there are still calls for the full implementation of the transitional justice processes especially in light of the International Criminal Court having terminated the last case in relation to the post-election violence as well as Kenya’s impending general elections in 2017. This paper begins by introducing transitional justice in Kenya and providing the 2007-2008 PEV as a background. The paper then investigates the ideal circumstances for implementing transitional justice mechanisms. In the case of Kenya, it is concluded that the situation in 2007-2008 PEV did not conform to the traditional context of societies in transition. Whereas there was no regime change that preceded the 2007-2008 PEV, there were human rights violations which were ethnically driven. The study illustrates how the violation of human rights depended on the ethnic tribe the person belonged to, hence identifying the main problem in the 2007-2008 PEV as negative ethnicity. Looking at the contextual precedence set by Latin American countries and later followed by other countries undergoing change, ethnicity has not been dealt with and to this extent Kenya presents a unique situation. The paper concludes that each of the transitional justice mechanisms implemented in Kenya had no impact on Kenya and as a result, the whole transitional justice process had failed. The paper recommends that stakeholders address and solve the inter-tribal fears and suspicions in order to create an opportunity for the different tribes to establish a relationship based on transparency. In the alternative, the paper recommends the adoption of the Territorial Self-Governance (TSG) which allows ethnic groups in a particular sovereign region to regulate their own affairs thus reducing the risk of ethnic tensions on account of one group's concerns not being addressed adequately. Ultimately, the paper recommends that the Truth Justice and Reconciliation report be tabled before Parliament for approval in order for the transitional justice mechanisms to be implemented fully.