Rethinking Transitional Justice As A Site of Social Justice Struggles

By Gacheke Gachihi

“A small but powerful group of greedy self-seeking elite in the form of politicians, civil servants, and businessmen has steadily but very surely monopolized the fruits of independence to the exclusion of the majority of the people. “

We don’t want to create a Kenya of ten millionaires and ten million beggars” 

JM Kariuki, who was assassinated in 1975 by the Kenyatta regime, speaking in parliament on economics and social justice

Kenya has history of betrayal since independence, as the quote from JM Kariuki, who was assassinated in 1975  by the Kenyatta regime, states. It is a regime of political injustices and the betrayal of the struggle of independence by Mau Mau freedom fighter; theirs was a struggle for land and social justice. After the collapse of the International Criminal Court cases,  and the 2017 divisive election and post- election violence, we are back again in the transitional justice discourse. This time it is transitional justice through “national dialogue” led by religious leaders. This process is  named “reconciling and restoring Kenya through structured dialogue,” which is conducted as part of rescuing the stalled democratic transition. The  so-named dialogue was held at Ufungamano House from 11 – 13th September 2018. Ufungamano is a venue that has played a historical role in the struggle for democratic transition since the 1990 push for multi-party democracy, which was convened by interfaith religious leaders. There was also the Peoples Commission on Constitutional Reform Movement in 2001, that shaped a path for the opposition unity under the National  Rainbow Coalition of Kenya (NARC) Party. NARC had brought in a reformist government, led by former opposition leader Mwai Kibaki in 2002, and also brought about a new constitution in 2010, which was necessary after the political violence of 2007.

The religious leaders through the National Dialogue Conference (NDC 1) are trying to restart the process following the calm that has been triggered by the famous “handshake” between the President Uhuru Kenyatta and Opposition Leader Raila Odinga. “In the recent past Kenya has witnessed  several events that have changed the pathway the nation is walking on following the 2017 general elections. One of the the major events was the handshake between President Uhuru Kenyatta and Hon. Raila Odinga.”  This is a quote from NDC 1 booklet. In addition, there is also a renewed drive for the fight against corruption, seen in the appointment of a new Director of Public prosecutions. The above quote speaks about a struggle to rescue a failed democratic transition over last two decades, and the pitfall of the constitutional reforms process in Kenya that tried to resolve the complex question of historical injustices and the land question through a limited human rights discourse that advocates for a liberal democratic transition and international criminal law (as happened with Kenya ICC cases in 2007-2008).

On  May 28, 2018, the Center for African Studies in Cambridge University organized activist scholars to reflect on “Rethinking Transitional Justice from African Perspectives.” This was a reflection on the potentials and pitfalls of human rights and transitional justice in Africa through grassroots social justice perspectives from Uganda, Somalia and Kenya. I participated in these discussions as the coordinator of  Mathare Social Justice Centre (MSJC) and a member of the grassroots social justice movement. It was my objective to bring a perspective from the social justice centres in Kenya, towards rethinking transitional justice from below, and the possibilities of creating alternative political leadership by ending the cycles of ethnic violence and building a collective political and social identity in the struggle for a democratic state founded on social justice and dignity.

My reflections during this process was that transitional justice is a site of struggle for people to reclaim their dignity and social justice from histories of political violence and social injustices. This site of struggle has created a path for the social justice movement in Mathare and other informal settlements in Kenya to fight against the normalization of extra-judicial killings,  to demand their right to water, healthcare, education and housing for all as part restorative justice.

Mathare Social Justice Centre is a site to rethink transitional justice from below, through the social justice movement. As we do this we also combine efforts for ecological justice, organized around Mathare Green Movement, to plant trees as part of the memorialization of victims of post-election violence and extra-judicial killings, which occur every election cycle especially in Mathare and other urban poor areas in Kenya.

The Mathare Green Movement gives the urban poor youth and women affected by post-election violence a civic space for reflection and political education. It allows them to organize and regain their dignity, gain ecological justice and fight against a victimhood narrative framed by human rights NGOs in Kenya. This is a narrative that is framed by an international criminal law perspective that has been imposed by human rights and  legal scholars to resolve complex historical injustices and ethnic politics in Kenya since independence. My reflections at Cambridge university were grounded to challenge the limitations of a human rights discourse and liberal democratic transition. By building a path for a social justice movement that can demand reparations for victims of political violence; by ending a history of political violence, demanding restorative justice to victims of land injustices and longer intervention through a democratic state founded on social justice, people participation can address historical injustices and create a path for social and political justice and healing. The Social Justice Centres Working Group is part of the Kenya transitional justice network and the police reforms working group. All Social Justice Centres — from  Kayole, Mathare, Mukuru, Dandora, Korogocho, Githurai and elsewhere — have  been participating in police reforms through attending national security conferences and police reform dialogues  convened by the Ministry of Interior and the coordination of the national government. This process was launched by the president on 13 September  2018, at Kenya School of Government  in Kabete. The participation of the Social Justice Centres Working Group was part of the demand for police reforms  and our longstanding campaign against the normalization of police killings. These demands were part of the petition we delivered to the government during our March For Our lives on Saba Saba day,  7 July 2018, as we demanded for an end to police killings and urgent radical police reform. During the national security conference, which I attended as a convener of the Social Justice Centre Working Group, the president made a number of declarations. He placed the administration police, regular units and other security agencies under one command structure of the inspector general. This was done to create public accountability and the efficient deployment of personnel and resources. This was after protests and demand for police reforms by civil society and grassroots social movements. Article 238(2) (b) of the constitution provides for national security to be pursued within the rule of law, democracy, human rights and fundamental freedoms. The police power to use force comes with responsibilities that must not be abused, as is happening in our urban poor areas and informal settlements like Mathare, Dandora, Kayole, Mukuru and many other places. After the security conference we issued a joint statement in support of the declaration, which we believe sends a clear message to all officers that are involved in unlawful killings and misconduct that they will be held personally responsible for their actions. Our  demand in the petition is also for the task force to review cases submitted to the Independent Police Oversight Authority (IPOA) by the Social Justice Centre Working Group, since it is their job to prosecute all unlawful actions by security agencies.

On 29th August 2018, the international day for the commemoration of victims of enforced disappearances, we participated again in the security  sector reforms and national dialogue process meeting convened by the International Centre for Truth and Justice, as part of shaping and rethinking transitional justice from below, and framing a narrative of transitional justice through social and ecological justice. We are also building a movement of  victims and survivors in the struggle of transitional justice, so as to challenge the limits of the Building Bridges Initiative (BBI) established by President Uhuru Kenyatta and Raila Odinga. We believe that it is a compromise by political elites and sectarian political interests to amend the constitution passed in 2010,  against the national interest of building a democratic state founded on social justice and human rights for all.

The Social Justice Centres Working Group is a collective leadership of registered community based organizations social justice centres established as  within poor areas of Nairobi, Kisumu, Mombasa and now Kampala. The grassroots social justice movement formed around the social justice centre model pioneered by Mathare Social Justice Centre, and intends to create a collective voice for grassroots human rights defenders and social justice activists concerned with issues relating to human rights violations and social injustices. The main objective is to build a social justice movement and the community solidarity necessary to contest and organize against the normalization of extra-judicial killings and all injustices.

The founding membership of Social Justice Centres Working Group includes Mathare Social Justice Centre (MSJC), Dandora Community Justice Centre, Kayole Social Justice Centre, The Kamukunji Youth Empowerment Network,  Githurai Social Justice Centre, Korogocho Information and Justice Centre, Dagoretti Social Justice Centre, Kibera Feminist and Information Centre, Kiambiu Information and Justice Centre and Kariobangi Social justice Centre

In the last three decades the global North has imposed a liberal democratic transition model to resolve democratic governance crises in the South, and the pitfalls of this have exposed the limitation of a liberal democratic transition anchored on human rights theory and international human rights law. It has also failed to resolve historical, political and social injustices or put an end to the political and ethnic violence in Kenya. The social justice movement through the collective grassroots voice is rethinking transitional justice from a social justice perspective. One example of this, is that between March – April 2018, every Tuesday of the week Mathare Social Justice Centre convened meetings with community organizers and social activists to rethink the struggle of transitional justice, and to campaign against the normalization of extra- judicial killings as part of demanding accountability from Kenya police, and bringing historical justice to the victims of post-election violence of the last two decades. These convenings created a path for the first Saba Saba March For Our Lives that was in memory of the pro-democracy struggles in Kenya in 1990, and was a platform to demand accountability against the normalization of extra-judicial killings in informal settlements. These killings are a manifestation of the inherently violent neoliberal economic policies that have exposed millions of young people to the social injustice of police killings, mainly of of youth between age 13-24 years.

References

  1. Reforms will Create Accountability  https://www.the-star.co.ke/news/2018/09/14/reforms-willl-create-accountability_c1818441
  2. Monopolizing Global Justice: International  Criminal Law as a Challenge to Human Diversity,  Sarah M.H and Wounter G Werner
  3. Our Economic Political Problems are linked: https://www.businessdailyafrica.com/analysis/columnists/Our-economic–political-problems-are-linked/4259356-4786730-rjk9k8/index.html
  4. Alarm as police kill 24 people in 21 days in Nairobi: https://www.the-star.co.ke/news/2018/11/08/alarm-as-police-kill-24-people-in-21-days-in-nairobi_c1847114
  5. In Kenya, grassroots efforts combat alleged police abuses https://mol.im/a/6580833 via @MailOnline
  6. https://www.standardmedia.co.ke/article/2001308391/how-slum-residents-are-fighting-extrajudicial-killings

 

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