Strategies for Engagement with the African Union Transitional Justice Policy (AUTJP)
Strategies for Engagement with the African Union Transitional Justice Policy (AUTJP)
Policy Brief
By James Gondi & Iqbal Basant
Table of Contents
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1.0 Introduction
The African Union has recently adopted the African Union Transitional Justice Policy (AUTJP).?The push for reform in Kenya now has been blunted relative to that in the aftermath of the PEV and the promulgation of the 2010 constitution. The Building Bridges Unity Initiative (BBUI) spearheaded by the protagonists of the divisive 2017 elections represents a strategic opportunity to advocate for Transitional Justice (TJ) in Kenya. In the same vein as the AU-TJ policy the BBUI speaks of inclusivity and reconciliation. The BBUI gives special focus to: inclusivity, divisive elections, protection of responsibilities and rights, ethnic antagonism and corruption and aims to build a more united Kenya. However, the BBUI has been criticized for being ‘a mockery, a waste of time, a waste of resources and a rubber stamping exercise.’??Nonetheless the BBUI represents an opportunity to achieve elements of transitional justice in Kenya. The Truth Justice and Reconciliation Commission (TJRC) report also provides a framework for achieving Transitional Justice in line with best practices globally. The state is placed as the duty bearer with regard to the provision of reparations as they are the entity both responsible for protection of citizens and often the state is among those who committed said violations. Aspects of this include restitution, compensation, and rehabilitation including medical and psychosocial services, restoration of dignity and guarantees of non-repetition.
In addition to this the AU TJ policy has several unique elements that make it suited to the Kenyan context. A victim focused approach is key to achieving TJ in Kenya and will be able to avoid the political machinations that troubled the quest for justice through the International Criminal Court (ICC). The tensions and violence around the 2013 and 2017 elections demonstrate that the wounds of 2007 have not yet healed and underlines the importance of achieving social cohesion in the run up to the next elections.
With this in mind the Institute for Justice and Reconciliation, (IJR), the International Center for Transitional Justice (ICTJ) and the Kenya Transitional Justice Network (KTJN) convened a forum on the AUTJP in Nairobi on the 8th of November 2019. This forum brought together key experts and CSOs working on Transitional Justice through KTJN to identify strategic advocacy areas to seek TJ through the new AUTJP. In attendance were the following individuals and organisations.
Attendees
Agatha Ndonga- International Center for Transitional Justice (ICTJ)
Agnes Odhiambo- Human Rights Watch (HRW)
Caleb Wanga- Usalama Forums
Chimwemwe Fabiano -African Leadership Center (ALC)
Claris Ogangah n0Office of the United Nations Commissioner for Human Rights OHCHR
Geoffrey Lugano -Research and Governance Consultant
Ikhran Abdullahi -African Leadership Center (ALC)
Iqbal Basant -Policy and Governance Consultant
Jacob Atiang?- Usalama Watch
Jacque Mutere -Grace Agenda
James Gondi -Regional Transitional Justice Expert
Kasiva Mulli -Raoul Wallenberg Institute
Legal Resources Foundation -Bilasio Wandera
Margaret Lowilla -African Leadership Center (ALC)
Munini Mutuku -National Cohesion and Integration Commission (NCIC)
Ombok Otieno -Uwiano Platform
Shuvai Nyoni -African Leadership Center (ALC)
Tabitha Mwangi - African Leadership Center (ALC)
Tim Muriithi- Institute for Justice and Reconciliation (IJR)
Wachira Waheire?- National Victims and Survivors Network (NVSN)
Wangu Kanja- Wangu Kanja Foundation
?The discussions of these experts form the policy recommendations herein.
2.0 The African Union Transitional Justice Policy
The AUTJP was adopted in February 2019 and is conceived as a continental guideline for African Union (AU) Member States to develop their own context-specific comprehensive policies, strategies and programmes towards democratic and socio-economic transformation, and achieving sustainable peace, justice, reconciliation’[1]The policy draws from the AU Policy on Post-Conflict Reconstruction and Development, and takes lessons from past experiences, including African traditional justice systems.
Through its TJ activities the AUTJP seeks to address the key causes of violence and colonial legacies while recognizes that the continent faces developmental challenges and deficits in its governance. This holistic approach ensures that a wide variety of stakeholders can be included and that it is forward looking. The AUTJP therefore recognizes that Africa has particular contexts, cultural nuances and priorities. The struggle for independence and the attempts to grow and consolidate democracy through different upheavals both of which have often resulted in instances of mass human rights violations. The recognition of these contextual peculiarities provides the AUTJP with a comparative advantage over more traditional ‘Western’ approaches which are at times seen to lack an understanding of the environment and therefore the consequences of suggested measures. It may be argued that the ICC process in Kenya for example took away from other TJ processes that would have been more effective.
Linked to this the AUTJP does not focus on retributive justice but looks at justice as a wider concept. It seeks to link ‘reconciliation, accountability and responsibility’ as interrelated imperatives. On the continent the quest for accountability has often been failed and as a result accountability and responsibility have suffered. This wide lens means that while accountability may remain problematic the less politically challenging aspects particularly reconciliation can take place. The AUTJP approach then will not only look at justice and reconciliation measures but seek to place these within the developmental and governmental challenges of the continent. This focus can be used as a catalyst and incentive for governments to undertake TJ and be used to bring in key development partners.
The AUTJP references several AU documents including the AU Vision 2063. The AUTJP notes that, ‘Transitional justice is crucial for the promotion of human rights and justice, peace and security, good governance and development’ in line with the ‘Africa we want’. Vision 2063 has called for an end to African wars and draws from, ‘the AU Constitutive Act, Agenda 2063, the ACHPR and the AU shared-values instruments’. The AUTJP:
·????????augments Aspiration 3 of Agenda 2063 which envisages an Africa of good governance, democracy, respect for human rights, justice and rule of law,
???????AUTJP complements Article 4h of the African Union Constitutive Act: Non-Indifference to war crimes, genocide and gross violation of human rights.
???????AUTJP Complements the Africa Peace and Security Architecture:?prevention, management and resolution of crises and conflicts, post-conflict reconstruction and development in the continent.
???????AUTJP complements the Africa Governance Architecture:?a platform for dialogue by AU organs & RECS to promote good governance and strengthen democracy in Africa: African ‘shared values’ & the African Charter on Democracy, Elections and Governance (ACDEG).
Key AU organs and institutions to provide leadership in the implementation of the AUTJP include
???????the African Union Commission (AUC)
???????the Peace and Security Council
???????the African Commission on Human and Peoples Rights (ACHPR)
???????the African Court on Human and Peoples’ Rights
???????the African Committee of Experts on the Rights and Welfare of the Child
???????the African Peer Review Mechanism; and
???????the Pan-African Parliament
The AUTJP acknowledges traditional and complementary justice mechanisms including rituals, which communities use for adjudicating disputes and for restoring the loss caused through violence in accordance with established community-based norms and practices. By embracing African traditional justice mechanisms the following characteristics may be adopted:
i. Acknowledgement of responsibility and the suffering of victims;
ii. Showing remorse;
iii. Asking for forgiveness;
iv. Paying compensation or making reparation;
v. Reconciliation.
When developing a framework for implementation therefore the AUTJP will draw upon traditional mechanisms such as those used by the Acholi in Uganda and the Gacaca courts in Rwanda. It is important that relevant local mechanisms be applied in each country and not imposed from other traditions. The policy will also draw from the AU high level panel on Darfur, AU Senegal Tribunal and its conviction of Hissene Habre as previous examples of TJ but which were conducted in an ad hoc manner rather than through a harmonized approach.
3.0 Context
In 2007 a heated presidential election resulted in a narrow win for the incumbent among claims of vote rigging. What initially began as political protests degenerated along the same ethnic lines that roughly split the two main contenders, Raila Odinga and the President Mwai Kibaki. This violence resulted in mass displacement and destruction of property along these same lines. Organised gangs of militia actively sought out members of other ethnic groupings to evict them from ‘ancestral’ lands or kill them. Eventually a peace settlement was reached between the two principals under the auspices of the AU and violence ceased.
As a result of the peace agreement investigations into crimes committed during the post-election violence (PEV) were to be carried out and the Commission of Inquiry on Post Election Violence (CIPEV) also known as the Waki commission was set up to look into this and the Truth Justice and Reconciliation Commission (TJRC) was set up to look into gross violations of human rights and historical injustices that occurred in Kenya between 12 December 1963 and 28 February 2008. After a largely bumpy process that was punctuated by political intrigues, on 21 May 2013 the TJRC submitted to the President and the public the report of its activities, findings and recommendations.
While this process was going on, CIPEV concluded that a special tribunal needed to be set up with local and international members and that should there be one within a set timetable or the report and supporting evidence would be passed on to the ICC including a list of whom the commission considers the most responsible, the now infamous Waki envelope[2] which would eventually lead to the prosecutor indicting Kenyan suspects following several failed attempts to establish a local tribunal.
Following the commencement of the investigation the Kenyan parliament voted to withdraw itself from the Rome statute amid some MP’s calling it an imperialist court.[3] Six suspects were named from the Waki envelope and four are set to undergo trials. Two of these, William Ruto and Uhuru Kenyatta ran in the 2013 elections and are now deputy president and president of the country respectively.
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The Kenyan political class has jumped on the same bandwagon as Sudan and the AU in denouncing the ICC as an imperialist court that targets African nations.?These two politicians have galvanised campaigns around this rhetoric. These calls are having an effect as public support for the trials in the Hague has been dropping since the warrants were first issued. [4] William Ruto and Uhuru Kenyatta have managed to portray themselves as victims of Western interests and the whole ICC debate was portrayed as Ocampo and the West persecuting Kenyans. [5] Following this then the elections of 2013 became a referendum on the ICC cases. Following their ascent to power these cases collapsed among allegations of witness intimidation and a lack of state cooperation. During this period the ICC cases overshadowed other attempts at TJ and became the focus of the international community, media, public and civil society.
In 2013 then when the TJRC completed its work despite controversy over the involvement of the chair in some of the atrocities that were being investigated, political will was lacking and the reform agenda had been diverted to the implementation of the new constitution passed in 2010. A direct consequence of this focus on international justice was the neglect of victims and survivors with little concrete action and debate on questions of reparations and social cohesion.
The TJRC report despite its shortcomings remains a comprehensive record of human rights violations committed in the country through its extensive volumes covering:
·????????Volume I: This volume provides a background to the formation of TJRC and an account of its mandate, methodology and challenges faced in execution of the mandate.
·????????Volume II: This volume focuses on gross violations of human rights and historical injustices. The volume is further divided into three sub-volumes. Volume IIA deals with gross violations of civil and political rights. Volume IIB focuses on historical injustices relating to land, marginalization, and corruption. Volume IIC is deals with gross violations of the rights of vulnerable groups such as women, children and minority groups.
·????????Volume III: This volume covers issues of national unity and reconciliation.
·????????Volume IV: The final volume outlines the findings and recommendations of TJRC.
This in tandem with numerous other reports can provide a basis for the development of a framework for implementing the AUTJP in Kenya.
4.0 Policy directions
In light of these factors consultations that were held with Civil Society in Kenya resulted in the following policy directions for engagement with the AUTJP.
Broadly speaking the key opportunity for engagement stems from the fact that:
(i)??????????this is a nascent policy and therefore there is ‘fertile ground’ for agenda setting and
(ii)?????????(ii) the AUTJP is a home-grown policy and therefore represents an attempt at African solutions to African problems.
In the Kenyan context the latter makes it more difficult for a public relations campaign to be launched by the government against TJ measures in a similar manner to that around the 2013 elections and the ICC cases. In these cases the focus was on accountability and retributive justice which manifested itself in the targeted individuals. The conciliatory nature of the AUTJP also makes it less politically sensitive to the status quo and places questions of high level accountability at a lower premium than the ICC process did. Efforts at peace building and reconciliation between communities have broadly not received any opposition from government on National Cohesion is in line with government thinking and language post 2007 – indeed this language is shared with the National Cohesion and Integration Commission (NCIC) formed in the wake of the PEV who were stakeholders in these deliberations. Bearing this in mind any attempt to engage with the AUTJP must be victim centred in nature. The member states and the Kenyan government are therefore likely to be more receptive to this process than they have been towards the ICC.
The existence of the TJRC report and its documentation of numerous violations and recommendations on how to address these provide a clear starting point which can in some respects act as a baseline. While the TJRC report as a whole has been held up in the National Assembly and therefore has not been officially implemented there are various aspects of this that have been undertaken through a reform process. Examples of this include: Police Reform, Judicial reform, and various legal reforms that act as guarantees of non-repetition and seek to safeguard human rights. The progress made on these has been in the restorative areas rather than the retributive areas of justice and this is in line with the AUTJP.
The AUTJP then provides an external African based system of Transitional justice with a focus on restorative rather than retributive justice all of which were key criticisms of the ICC process that came to dominate the Transitional Justice process in Kenya. This can be used to provide measurable targets as there have been for other commitments to international agreements with the TJRC used as a basis for creating a Kenyan policy of the AUTJP replete with milestones, targets focus areas and the like drawing from the tenants of the AUTJP.?Within the context of the upcoming election and yet to be realised possible reforms within the BBI camp such a move would be strategic at this juncture. This can be achieved primarily through an advocacy campaign.
The key participants at this workshop were civil society and therefore the majority of policy recommendations are for civil society. Drawing from this then there are activities and policy implications that can be undertaken including the following:
4.1 For Civil Society
·????????Develop an advocacy campaign targeting key stakeholders principally the media, government, victims and the public around awareness of the AUTJP and how it can be used in a Kenyan context
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o???This can be done initially through the auspices of the Kenya Transitional Justice Network (KTJN) which played a key role in mobilisation for this workshop.
o???KTJN through its various civil society constituents can begin raising awareness among other civil society groupings on the possibilities for joint advocacy and the strategic opportunities for Transitional Justice offered by the AUTJP particularly those that engage locally with victims and survivors not only of the PEV but mass atrocities committed
Victims
o???Through the auspices of the National Survivors and Victims Network (NVSN) ensure that this is a victim lead process and create awareness on how they can benefit from the advocacy around the AUTJP Target key victim groupings and where capacity exists engage them in advocacy activities at the local, national and regional level.?
o???Develop advocacy capacity among victims groups to engage with the AUTJP
Media
o???Undertake trainings and provide stories to the traditional media on the relevant aspects of the AUTJP and its applications to the Kenyan context with a focus on the plight of victims
o???Bolster these advocacy initiatives through media appearances and social media including the strategic use of key influencers or champions such as bloggers in the Kenyan space.?
Public
o???Undertake public and civic awareness campaigns through barazas on the AUTJP and the Kenyan context. Where possible tie into existing events around similar issues including the BBI and other strategic opportunities.
Government and AU
o???Petition and advocate key government bodies responsible for implementing aspects of Transitional Justice including the NCIC, KHRC and the National Assembly. Seek to work with MFA, Treasury, Auditor General, State Department for Gender, Parliament select committees dealing with foreign policy, LSK and others.
o???Identify key champions in government that can push the AUTJP agenda
o???Carry out advocacy activities at the AU level and other relevant regional and international fora. This can further be used as an opportunity to adopt best practices from other African cases and spread awareness on the AUTJP across the continent for possible collaboration.
o???Introduce and advocate for AU resolutions calling for the implementation and development of frameworks for monitoring implementation of the AUTJP
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·????????Undertake a mapping exercise to identify key strategic stakeholders and champions that can be targets of advocacy around the AUTJP
o???At a minimum these should target government, regional bodies, victims and survivors groupings media and the public
o???Identify key champions at all of these levels to promote the AUTJP including a focus on county levels where specific violations have been suffered. These efforts can be tied into peace building and conflict prevention efforts around the 2022 elections.
o???Identify key donors who would be willing to support work around the AUTJP and leverage on existing relationships as KTJN.?
o???Engage academics to undertake key research around conflict and peace building issues related to the implementation of the AUTJP
o???Engage the private sector and multi-nationals in the advocacy campaign as targets and conduits.
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·????????Develop an action plan and national policy around the AUTJP using the TJRC report as a basis to develop measurable activities and impacts for Transitional Justice measures undertaken.
o???This plan should clearly map the policy implications of the AUTJP and its key focus areas relevant to Kenya. An emphasis should be placed on African measures of justice and reconciliation
o???Working with the TJRC report as a starting point identify key areas in which the principles of the AUTJP can be applied to the Kenyan context. This can be used to create an action plan with key deliverables for monitoring.
o???Use this action plan to identify key responsible parties at the civil society level, government and others and use this to inform advocacy.
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·????????As per the AUTJP (Article 138) the implementation of this policy should be facilitated through the Department of Political Affairs.
o???Kenyan civil society must ensure that they play a role and have representation within this yet to be formed mechanism
o???Ensure buy in to the Transitional Justice process in Kenya from the Department of Political Affairs and other relevant AU bodies.
4.2 For Government
·????????The Government should directly engage with Transitional Justice and change their negative stance towards the issue. There are aspects of the AUTJP that will likely appeal to them and tie into existing programs
·????????Government ownership of the process from the AU level and at the national level is critical to ensure accountability of states.?
·????????Set out national policy guidelines and undertake activities to engage with Transitional Justice activities with victims at the centre of the process.
·????????Work extensively through relevant constitutional commissions familiar with these issues such as the National Cohesion and Integration Commission (NCIC) and Kenya National Commission on Human Rights (KNCHR), National Gender and Equality Commission (NGEC) and Parliament and cabinet secretary Interior and Finance and Development partners.
·????????The government must avail resources for the implementation of the AUTJP
4.3 For the African Union (AU)
·????????The AU should take a leadership role in awareness raising of the policy amongst its members
·????????The AU must take ownership of the policy to ensure that they drive the process of implementation
·????????The AU should collaborate with various regional bodies such as the EAC and ECOWAS to raise awareness.
[1] African Union (2019) The African Union Transitional Justice Policy Article 1
[4]Charlie Warren?Sept 1 2001 The International Criminal Court and Kenya ‘Ocampos six an important hurdle for the ICC African Arguments https://africanarguments.org/2011/09/01/icc-in-kenya-debate-ocampo%E2%80%99s-six-an-important-hurdle-for-icc-by-charlie-warren/