The United Nations (UN) defines Transitional Justice (TJ) as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” . The UN’s work on transitional justice is based on international human rights law, international humanitarian law, international criminal law and international refugee law . Key broad tenets in this work is emphasis on State obligation on gross human rights violations, right to the truth, about past abuses, right to reparations and assurance of non-repetition.
The International Centre for Transitional Justice (ICTJ) puts the meaning of TJ as “response to systematic or widespread violations of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse” . Internationally, many countries have employed mechanisms to operationalize TJ as a State obligation to address historical injustices. These efforts take forms of establishment of Truth Commissions, reparations as well as institutional reforms.
Transitional Justice aims at among other things: advancing the rule of law, reconciliation, establishing accountable institutions, facilitating peace process, justice for the marginalized, and making access to justice to be realistic for the vulnerable a periods succeeding gross human rights violations.
Some of the Countries that have undertaken truth commissions include: Timor-Leste, Sierra Leon, Guatemala, Liberia, Chile, South Africa, and Kenya. Out of these Commission reports, States are recommended to carry out administrative reparation programs different from court-ordered programs. The target victims are citizen that suffered civil political rights.
In its analysis for necessary requirements for a democratic society, the Task Force on establishment of a truth and justice Commission in Kenya, the Makau Mutua task force stated that transitional justice was an inescapable imperative for countries emerging from decades of gross misrule, abominable human rights violations, and large-scale plunder of public resources, shameless graft, and theft of public wealth . It added that transitional justice was necessary for to achieve national recovery and reconciliation, the only option to banish impunity from the national practice and psyche. Transitional justice serves as a temporary measure to build a human rights state where society concretely addresses grievances of the past.
The report continued and stated that a ravaged state, such as Kenya, cannot be recreated without an agenda for transitional justice to end public corruption and prevent human rights abuses. But transitional justice cannot be achieved unless the mistakes and atrocities of the past are properly, fairly, and comprehensively investigated, the perpetrators held accountable, and victims recognized and their dignity restored
THE RIGHT TO REMEDY AND REPARATIONS
Many States will make reparations on their own, without outside intervention, especially when facing the political consequences of their breach of international obligations
In 2005, the United Nations General Assembly adopted resolution 61/147 on the right to remedy and reparations . International human rights instruments have given prominence to the right to remedy. Article 8 of The Universal Declaration of Human Rights states: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Reconfirmation of the Right to Remedy: The International Covenant on Civil and Political Rights (A/RES/2200 A (XXI), 16 December 1966 reconfirmed the right to remedy articulated in the Universal Declaration of Human Rights, stating “Each State Party to the present Covenant undertakes: To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by another competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedies; and To ensure that the competent authorities shall enforce such remedies when granted” . Reparations must be proportional to the harm suffered and should as far as possible restore the life and dignity of the victim .
FORMS OF REPARATIONS
According to the United Nations Basic Principles and Guidelines, on the Right to Remedy, reparations takes the following forms :
• Restitution
• Compensation
• Rehabilitation
• Satisfaction, and Guarantees of non-repetition
Symbolic reparations include:
I. Apologies
II. Memorials
III. Commemorations
KENYAN TRUTH PROCESS UNDER TRUTH JUSTICE AND RECONCILIATION COMMISSION
In 2003, a taskforce was appointed by the Republic of Kenya to research and find out whether a truth commission was necessary in Kenya. In April of that year, Professor Makau Mutua chaired the Task Force on the Establishment of a Truth Justcie and Reconciliation Commission. The Task Force found that Kenyans wanted a TJRC to be established immediately (before June 2004) to address and redress past human rights violations and other injustices including economic crimes. Task Force had recommended that the incoming Commission document gross human rights violations committed between December 1963 to December 2002. Although Professor Makau Mutua’s Task Force presented the report to the government in August 2003, it wasn’t until the aftermath of the 2007-2008 political mess when Kenyans again revisited the matter. With the Koffi Annan led team, it was agreed that the fast racking of the establishment of the TJRC was important as part of measures that would be taken to begin comprehensively addressing historical injustices.
The Truth, Justice and Reconciliation Commission (TJRC) was established as part of the Agenda Four of the National Reconciliation and Dialogue Accord, with the objective of promoting peace, justice, national unity, healing, reconciliation and dignity among the people of Kenya, a mandate derived from the TJRC Act of 2008. TJRC was to investigate and establish historical of human rights violations by the Kenyan State from December 12th 1963 to February 28th, 2008. The Commission, further, was to explain the causes of violations and recommend prosecution of perpetrators and reparations for victims. The TJRC report (insert link) collected 42, 465 statements and 1, 828 memoranda across Kenya. According to TJRC, gross human rights violations, to which reparations are therefore sought for include among other: acts of torture, killings, abduction, severe deprivation of physical property, and rape and other sexual violence. Others included enforced disappearance of persons, persecution of identifiable groups based on various grounds that are impermissible under international law, crimes against humanity, social economic marginalization and grand corruption.
In November 2008, Kenya enacted TJRC bill and nearly after nine months (3rd August 2009) Commissioners were appointed. The TJRC was mandated to create an impartial, historical record of what happened on the past human rights atrocities, address impunity, respond to the concerns of victims, promote healing and reconciliation , prevent repetition of the violations and abuses suffered (TJRC Act 2008).
It is worth noting that since its establishment and nearly over a year later, the TJRC experienced a number of challenges which directly and indirectly hindered the effective execution of its mandate. It experienced serious constraints but of critical concern was the creditability questions which affected citizens’ confidence in the institution particularly linked to the chair Mr. Kiplagat. On the 20th of August 2010 a group of human rights defenders and representatives of victims filed a legal suit against TJRC and its chair calling for his removal or disbandment of the Commission. On 4th of February 2010, Elders representing Coast region walked out of a TJRC public forum. On the 5th of February 2010, again emerged more demands calling the chair to resign as he was key and part of the Moi regime which is linked to the major human rights and economic atrocities and hence he is regarded as primary witness.
There were two petitions to High Court where one challenged the composition and statutory mandate of TJRC (Misc App No. 470 of 2009) while the other sought for dissolution of the Commission (Pettition No. 1 of 2010 at Kisii High Court). A number of regions refused to engage the Commission because of the allegations against chair on his direct involvement in illegal acquisition of public assets.
Similar to the challenges facing reparations mechanism in 2018, TJRC faced a share of the lack of political will. When the Commissioner’s position held by Betty Murungi fell vacant in 2010, the President did not replace her as required by the Truth Justice and Reconciliation Act. There was no replacement for the TJRC Chair when Ambassador Kiplagat stepped aside. In addition, the State deliberately refused to give TJRC vital documents pertaining its mandate for review. These included reports of previous commissions of inquiry.