Challenges for Post-Conflict Justice
and Sustainable Peace in Kenya
The delicate process of peace negotiation continues to create tensions between the need to keep all those involved in the conflict actively engaged in the process, while at the same time affirming the rule of law in ways that will sustain both the negotiation as well as peace in the future. Subsequently, human rights have emerged as either complementary to, or in tension with, the practical imperatives of peace-making.
Based on the general principals of human rights protection and state law decreed by international instruments such as the 1948 Declaration of Human Rights, the Convention on the Prevention and Punishment of Crimes of Genocide, and recently the Rome Statute, the idea that perpetrators of crimes against humanity in times of violent conflicts should be punished has become internationally accepted and expanded into a scheme of actions that is increasingly hostile to calls for blanket amnesties for past violations of human rights.
An outcome of this development has been the apparent polarization of Justice and peace in post conflict negotiations and their presentation as mutually exclusive imperatives with attempts at the pursuit of either one or the other. In Kenya’s post-conflict coalition government, the Party of National Unity (PNU) has insisted on the immediate application of mechanisms of retributive justice, while the Orange Democratic Movement (ODM) insists that this particular way of pursuing justice will substantially jeopardize the prospects for peace. This is despite the fact that in ordinary circumstances, peace and justice go hand in-hand given the argument that they are inseparable and one is a subcomponent of the other. This is reflected in the United Nations (UN) Charter, whose objective is to avoid war, and refers to the concept of human rights, while the Universal Declaration of Human Rights on the other hand makes a ‘just peace’ thesis very explicit.
Proponents of ‘justicefirst, peace will follow’ approach in post conflict situations have been accused of being unable to approach grave human rights violations without yielding to a retributive impulse thus resorting to developing sophisticated tribunals, with sometimes perplexing rules for the administration of justice, and attempting to apply these rules to all situations regardless of contextual specificities. In Kenya, the PNU has been accused of applying the rules selectively.
The ‘peace should come first’ proponents on the other hand are accused of condoning impunity and attempting to “purchase peace at any price,”1 and may be justifiably so, for after all, is it not true that perhaps, protection of human rights and punishment of perpetrators might also be the only thing the victims of violence carry home from the negotiation table?
But this sparring is tempered by Siegel who seems to emphasize the need to contextualize priorities in post conflict negotiations. His is a call for each specific case to “decide, if it wants to pursue prosecutions, which crimes can be proven, which can withstand challenges on such constitutional grounds as violation of ex post facto law, and that,…each citizen must also help decide whether, on balance, particular prosecutions or other measures threaten or advance national reconciliation, unduly risk provoking the security forces or other elements of the regime to revert to authoritarian rule, and contribute to the building or destroying of democracy and respect for the rule of law.”2
This voice is supported by Vasuki Nesiah who has warned that the meaning of the term transitional justice in any given situation is open and contested and that “Mechanisms directed at furthering justice in any particularly situation operate in a complex and context specific set of constraints and opportunities-not just the intricacies of power, hierarchy, and difference that mark most communities, but also myriad other dimensions of local and global background conditions.”3
In deciding principles to guide action, Siegel and Vasuki Nesiah’s propositions become imperative as the amnesty or punishment options call for a context based approach in which case, each specific conflict would have on the negotiation table priorities for a return to peace, but in which the complexity of peace and justice would be a matter of sequencing. As Moses Okello has observed in the Northern Uganda’s LRA vs. Government of Uganda case, “the rationale for a peace first, justice later position is quite simple: It is a matter of sequencing, and sequencing should be distinguished from prioritization.4”
Thus it might be right to conclude that if the preferred sequencing in a particular conflict is peace followed by justice, this, as Okello observes “in no way signals that justice is a lower priority than peace”5. Rather, he continues, “it is a practical decision to ensure that the environment is conducive for a comprehensive pursuit of justice (i.e., that a peace deal has been struck, civilian authorities are back in place, people are no longer living hand to mouth and are therefore better able to pursue justice for themselves) is definitive proof that real justice will prevail.”
Whereas the insistence by the Party of National Unity (PNU) on punishment for flagrant violations of human rights during the post election violence may undoubtedly complicate the coalition Government’s plan and ability to bring the conflict to an end, a blind call to amnesty by the Orange Democratic Movement (ODM), regardless of the concessions made may create obstacles for the redress of systematic atrocities. But as shown by Lupnam in the case of El Salvador, the dilemma might be a question of identifying issues that are uniting and acceptable to both parties.
The question should not be about ‘either this or that.’ It might mean that ODM and PNU work together and focus more on identifying and offering at the right moment the right combination of incentives including even amnesty to achieve initial stability without ignoring the legitimate interests and expectations of justice of the victims and society at large. While refusing to consider various forms of impunity may discourage a more responsible approach to peace-making and eventually lead to instability and even a return to violence, insistence on prosecuting abuses can certainly make peace-making difficult and a search for justice hopelessly difficult.
The very best that could have been done between ODM and PNU at the time of solving the conflict would have been to insist, above all else, on the parties signing an agreement to create favorable conditions and structures to achieve a lasting peace. This would include the creation of a robust, independent judiciary and transparent institutions that protect the citizens but with ability to also deal with the past. In this spirit, the coalition government should take agenda four of the agreement more seriously for it holds the key to some of the present challenges.
The violations committed during those dark days are attributable to both ODM and the government (PNU) with the former for calling for mass actions and the later for failing in its obligation to carry out a free and fair election and to protect its citizens by commission and omission. If one were to follow the path of peace and justice simultaneously the two would be the most easily identifiable perpetrators and the ones for whom the peace with justice approach may be appropriate. However, if both perpetrators were to be pursued simultaneously prior to stability this might very well derail the peace efforts.
While PNU operatives insistence on full judicial accountability for human rights violators is a positive ‘national development,’ failure to consider the unique power balances of Kenya as a society emerging from a violent conflict risks undermining attempts to establish a durable peace and setting the PNU as a spoiler.
In conclusion, while it is important that justice is achieved for the post election human rights abuses, ODM and PNU should consider issues of timing and jurisdiction in devising effective post-conflict strategies. More importantly all players in the post conflict negotiations should consider post-conflict justice as a process that unfolds over time and condition their advocacy on the specific circumstances of the country as opposed to a confrontational approach that demands judicial accountability in all circumstances. In doing this, they should be guided by past experiences, including looking at the characteristics of societies that have pursued prosecution and fared better (in the areas of preventing further abuse, establishing the rule of law, and achieving reconciliation) against those that have avoided formal judicial mechanisms for addressing past abuses.
Amollo, Maurice Amollo is a Programme Officer in charge of Social Transformation Strategies at Jesuit Hakimani in Nairobi.
1This argument is contested by Putnam, (240) who claims that prioritizing of peace is meant to only lay bare the hierarchy of priorities during peace settlements and implementation.
2Richard Lewis Siegel, "Transitional Justice: A Decade of Debate and Experience," Human Rights Quarterly, 20.2 (1998), 431-454.
3Vasuki Nesiah, ‘Truth vs. Justice? Commissions and Courts’ in Human Rights & Conflicts: Exploring the links between Rights Law and Peacebuilding. Julie A. Mertus and Jerffrey W. Helsing Eds. (Washington: United states Institute of Peace, 2006), 375-397.
4Moses Okello The False Polarization of Peace and Justice in Uganda, unpublished presentation made at the International Conference on Peace and Justice 25th -27th June 2007 Nuremberg, Germany.
5Moses Okello, presentation.