End of the road?
On April 5, 2016, ICC judges vacated crimes against humanity charges against Deputy President William Ruto and a former broadcaster, Joshua Arap Sang, ending the last ICC prosecution directly related to the violence. Expectedly, this dealt a huge blow to victims who had hoped for justice from the ICC. At national level, there has been little to no effort to hold to account the perpetrators or address the ever deteriorating socio-economic and medical needs of victims. As such, all eyes were on the ICC to deliver that which the Kenya government has neglected and failed to deliver; justice.
Amidst the heavy clouds of disappointment it must not be lost that the ICC is a court of last resort and intervenes only when a state is unwilling or unable to offer redress. These interventions are but complementary to national systems. Victims of the 2007/2008 post-election violence deserve justice, reparations and assistance. This is not and should not be pegged on the outcome of the ICC cases but that there was post-election violence in Kenya and resultant victims. The post-election violence resulted in at least 1133 deaths, 900 cases of sexual and gender based violence, 663,921 internally displaced persons and numerous victims of grievous harm and destruction of property.
Kenya has legal provisions and mechanism necessary to offer justice, reparations and assistance to victims of post-election violence – whether such victims are within cases that have been before the international criminal court or not. They include but are not limited to the Constitution of Kenya, International Crimes Act, the Truth Justice and Reconciliation Act, and the Prevention Protection and Assistance to Internally Displaced Persons Act.
The freedom and security of the person and the protection of the right to property are constitutional provisions under Articles 29 and 40 of the constitution of Kenya, respectively. By Article 19 (3) (a), these rights and fundamental freedoms belong to each individual and are not granted by the state. A reflection on how victims of post-election violence were affected revolves around the rights to freedom and security of the person and on protection of the right to property.
When there is a violation of these rights, it’s again the state’s systems that should offer redress. Article 21 of the constitution provides, as a fundamental duty, for the state and every state organ to observe, respect, protect, promote and fulfil these rights.
Truth Justice and Reconciliation Commission’s Report(TJRC Report)
The TJRC report provides for a comprehensive reparations framework for victims of violations of human rights – including of post-election violence. It also comprehensively explores the root causes of conflicts and violations of human rights that if addressed would prevent future atrocities. However the report is yet to be adopted by the National Assembly and implemented by the relevant institutions.
Alternative Justice Systems (AJS) and Reconciliation
At the centre of AJS is the real and intended action of bringing together conflicting parties and restoring peace and harmony in communities. The Constitution provides for promotion of legitimate and valid adjudicative powers to other forms of dispute resolution. If AJS is promoted within contexts of communities applicable, they present home-grown mechanisms, would be culturally appropriate, would use minimal resources, would be accessible and acceptable to communities they would serve. The design of alternative justice systems for post-election violence cases should be complimentary to existing judicial mechanism. They should not be interpreted as replacing formal judicial systems.
The Prevention Protection and Assistance to Internally Displaced Persons and Affected Communities Act (IDP Act)
The IDP Act has provisions for mitigation measures and for having in place durable and sustainable solutions on internal displacement. This calls for an engagement within counties and affected persons in a participatory manner.Implementation requires action from both national and county governments and adequate resources (funds and personnel), primarily through budgetary allocation by the National Assembly.
Establishment of the International Organized and Crimes Division of the High Court (IOCD)
In cases of gross human rights violations like the 2007/2008 PEV, huge numbers of people are often implicated. It is impossible for the ICC to try all these individuals neither can the normal domestic courts handle all these cases in addition to the other matters brought before the court. This means that a huge “impunity gap” prevails at the community level where victims survivors and perpetrators are forced to co-exist in fear and mistrust. The establishment of the IOCD fills this gap and is critical in assisting Kenya meet its international and national obligations.
It goes without saying that for the IOCD to meet international standards it has to be well resourced and there has to be uncompromised political support from the Kenyan government. The Kenyan Government is expected to fund the IOCD adequately in addition to donor funding.
Seize the opportunity
Kenya must therefore rise to the occasion and renew efforts to deliver justice for victims exploring all available options. This requires serious commitment from the State.