justice in perspective

LATEST UPDATE

January 2008: The first team of investigators visited the DRC in August 2004, with the first hearings on the DRC being held by the ICC in March 2005.

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TRANSITIONAL JUSTICE PROCESSES

Kenya: | International Criminal Court

africa kenyaNAME OF MECHANISM

International Criminal Court

PERIOD OF OPERATION

March 2010 – present

MANDATE AND OPERATIONS

In March 2010, the Pre-Trial Chamber approved the International Criminal Court (ICC) prosecutor’s request to investigate Kenya’s 2007–2008 post-election violence after the Kenyan government showed no initiative in launching its own prosecutions. This is the first ICC investigation begun on the prosecutor’s initiative, as previous cases have been referred by state parties or by the United Nations Security Council.

RESOURCES

International Criminal Court website: Situation in the Republic of Kenya
Report of the Commission of Inquiry into Post-Election Violence (Waki Report) [2008]
Press Conference of the Prosecutor of the International Criminal Court [Nov 2009]

RESULTS

On 15 December 2010, ICC Prosecutor Luis Moreno-Ocampo released a list of the six senior allies of President Mwai Kibaki and Prime Minister Raila Odinga suspected of having been the main architects of the post-election violence. The suspects, known as the “Ocampo Six,” are Higher Education Minister William Samoie Ruto, Minister for Industrialisation Henry Kiprono Kosgey, radio executive Joshua Arap Sang, Cabinet Secretary Francis Kirimi Muthaura, Deputy Prime Minister and Finance Minister Uhuru Muigai Kenyatta and former Police Chief Mohammed Hussein Ali [BBC| 15 Dec 2010].

The Kenyan government responded by asking the ICC for a postponement and announcing that it is capable of prosecuting the suspects in domestic criminal courts. The plea was based on reforms the government had implemented since 2008, including adopting a new constitution [BBC | 8 Apr 2011]. On 23 December 2010, the majority of Kenyan parliamentarians, many with links to the suspects, voted for Kenya to pull out of the ICC’s Rome Statute [BBC| 23 Dec 2010]. In February 2011, the African Union announced its support for the Kenyan government’s efforts to delay the ICC case [BBC| 1 Feb 2011].

On 7 April 2011, Ruto, Kosgey and Arap Sang, all allies of Prime Minister Odinga, appeared at an ICC preliminary hearing during which they were accused of crimes against humanity but not formally charged [BBC | 7 Apr 2011]. On 8 April 2011, Kenyatta, Kirimi Muthaura and Hussein Ali, allies of President Kibaki, appeared at a similar hearing. The ICC pre-trial judges are expected to decide in September 2011 whether the suspects will be formally prosecuted [BBC | 8 Apr 2011].

On 30 May 2011, ICC Pre-Trial Chamber II announced that the ICC investigations into the post-election violence would continue as the Kenyan government had not demonstrated that it would prosecute those responsible [Reuters| 31 May 2011], a decision the government soon appealed. On the same day, the Kenyan media reported that “all crucial witnesses” to the ICC’s cases had been transferred out of Kenya for witness protection [Standard | 31 May 2011].

In June 2011, it was reported that at least 2,350 victims of the post-election violence applied to take part in the cases against the “Ocampo Six” or to be compensated. Of these, 550 victims applied to be part of the case against Kenyatta, Muthaura and Hussein Ali, while 1,800 victims applied to be part of the case against Ruto, Kosgey and Arap Sang [Daily Nation | 28 Jun 2011].

BACKGROUND

As part of negotiations surrounding the peace agreement made in February 2008, the head of the African Union (AU) Panel of Eminent African Personalities, former UN Secretary-General Kofi Annan, made a request to ICC Prosecutor Luis Moreno-Ocampo to investigate the 2007 post-election violence.

In 2008, the Commission of Inquiry into Post-Election Violence (Waki Commission) report identified key individuals for prosecution, as well as offered broader recommendations on institutional transformation. The names of individuals to be prosecuted were forwarded to the ICC after the Kenyan government missed several deadlines set for the creation of a special tribunal.

In December 2009, Ocampo applied to the Pre-Trial Chamber judges for permission to open a case against the main perpetrators of the violence. Ocampo argued that he has reasonable basis to believe that the attacks against Kenyan civilians during the post-election violence constituted crimes against humanity [AP | 31 Mar 2010].

Kenya ratified the Rome Statute on 15 March 2005. In accordance with the complementarity principle, the ICC may only intervene if there are no national proceedings against those responsible for crimes.

SOURCES

[Associated Press | 31 Mar 2001]
[BBC | 15 Dec 2010]
[BBC | 23 Dec 2010]
[BBC | 1 Feb 2011]
[BBC | 7 Apr 2011]
[BBC | 8 Apr 2011]
[Daily Nation | 28 Jun 2011] 
[Reuters| 31 May 2011] 
[Standard | 31 May 2011] 

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Kenya: | Truth, Justice and Reconciliation Commission

africa kenyaNAME OF MECHANISM

Truth, Justice and Reconciliation Commission

PERIOD OF OPERATION

March 2009 – present. The commission began its work in January 2010 and was slated to submit a final report in November 2011. It has requested a six-month extension.

MANDATE AND OPERATIONS

Mandate: The Truth, Justice and Reconciliation Commission (TJRC) was established by the Truth, Justice and Reconciliation Act of 2008 to investigate historical injustices, human rights violations (politically motivated violence, assassinations, displacements, settlements, evictions, etc.) and major economic crimes (grand corruption, historical land injustices, illegal/irregular acquisition of land) committed by the state, groups or individuals between 12 December 1963 and 28 February 2008.

The final report is to state the commission’s findings and recommendations, which are to be submitted to the president and made public within 14 days. No blanket amnesty is to be provided for past crimes, but individual amnesties may be recommended. The TJRC is not mandated to recommend prosecutions. Victims could apply to the commission for reparations.

Staff: Six Kenyan commissioners and three international commissioners, five men and four women, nominated by the Panel of African Eminent Personalities: Mr. Bethuel Kiplagat (chair, resigned), Mrs. Betty Murungy (vice chair, resigned), Ms. Tecla Namachanja Wanjala (acting chair), Mr. Tom Ojienda, Ms. Margaret Wambui Shava, Major Gen. (Rtd.) Ahmed Sheikh Farah, Ms. Gertrude Chawatama (Zambia), Mr. Berhanu Dinka (Ethiopia) and Mr. Ronald Slye (United States). Ms. Patricia Nyaundi is the commission’s secretary and CEO.

Budget: About US$12.8 million, with an additional US$5.3 million promised by the Kenyan government for further public hearings [Daily Nation | 3 Mar 2011].

RESOURCES

Truth, Justice and Reconciliation Act [2008]
Report of the Commission of Inquiry into Post-Election Violence (Waki Report) [2008]
Kenyan National Dialogue and Reconciliation Findings [2009]
TJRC Progress Report to the National Assembly [2011]

RESULTS

The TJRC has been plagued by challenges. Soon after the commissioners were announced on 22 July 2009, civil society organisations challenged the appointment of Bethuel Kiplagat, alleging that he was involved in the irregular acquisition of public property, the Wagalla Massacre and the murder of Minister of Foreign Affairs Robert Ouko [KHRC | 11 Oct 2010]. By April 2010, the other commissioners, along with a number of world leaders and civil society organisations, were demanding Kiplagat’s immediate resignation [Daily Nation | 13 Apr 2010]. In June 2010, a team of parliamentarians in the House Committee on Justice and Legal Affairs started looking into ways to disband the TJRC [Daily Nation | 21 Jun 2010].

In November 2010, despite his initial refusal to resign, Kiplagat announced that he was stepping down. Kiplagat resigned after the appointment of a tribunal to examine his conduct, stating that he would be vindicated by the body [BBC | 2 Nov 2010]. Kiplagat has since filed a suit against the tribunal, arguing that it is only allowed to investigate his conduct as TJRC chairman, not his past [Daily Nation | 27 Apr 2011]. The tribunal has been put on hold pending the suit’s resolution.

Despite these setbacks, the TJRC has continued its investigations and public hearings. In March 2011, the commission noted that issues of land ownership were emerging as one of the main themes in public hearings. Of the 29,020 people who had testified by that time, 35 percent listed unfair land distribution, loss of land and lack of land tenure rights as their main concern. In addition, 34 percent cited extrajudicial killings as their main concern [Daily Nation | 20 Mar 2011].

Also in March 2011, former TJRC Deputy Chairperson Betty Murungi publicly appealed for local trials of about 6,000 Kenyans implicated in sexual violence in 2007–2008, citing a need for local solutions to the country’s problems. Investigations into post-election sexual violence began in 2009, when former Police Chief Mohammed Hussein Ali established a taskforce to address the issue [Daily Nation | 30 Mar 2011].

From April through June 2011, the TJRC held hearings and gathered evidence in relation to the controversial 1984 Wagalla Massacre in the northeast Kenya. According to survivors, during an operation aimed at disarming ethnic Somali clans, government forces committed massive human rights violations, including torture, and killed up to 5,000 people. The government is said to have downplayed the operation, claiming that 57 people were killed [BBC| 18 Apr 2011]. Some of the key witnesses, including former TJRC Chairman Kiplagat, former Chief of General Staff Joseph Kibwana, former Cabinet Minister David Mwiraria and former Provincial Commissioners Joseph Kaguthi and Benson Kaaria, initially failed to appear in front of the TJRC after being accused of involvement in the massacre [Daily Nation | 20 Apr 2011].

After testimony from several key government figures, including those who initially did not appear, the former finance minister and Home Affairs permanent secretary, David Mwiraria, apologised to the victims of the Wagella Massacre, calling it “a tragedy that should have not been allowed to happen” [Daily Nation | 7 Jun 2011]. The victims have called on the government to pay reparations and provide more assistance to the underdeveloped northeast [Daily Nation | 18 Apr 2011].

BACKGROUND

Kenyans began motivating for the establishment of a truth commission in 2002, when it was felt that greater space for democratic engagement had opened. This led to the creation of Kenya Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, which noted in its final report of August 2003 that over 90 percent of Kenyans wanted an effective truth commission established. However, little was done regarding its recommendations.

Following Kenya’s December 2007 elections, supporters of opposition leader Raila Odinga clashed with supporters of incumbent Mwai Kibaki when it was announced that Kibaki had won the presidency. In January 2008, negotiations brokered by the African Union (AU), through the Panel of Eminent African Personalities, which was headed by former UN Secretary-General Kofi Annan, resulted in a coalition government being established. A peace agreement was signed that included a roadmap for addressing the political and economic challenges in Kenya and provided for the establishment of commissions of inquiry into historical injustices and human rights violations.

SOURCES

[BBC | 2 Nov 2010]
[BBC | 18 Apr 2011]
[Daily Nation | 13 Apr 2010]
[Daily Nation | 21 Jun 2010]
[Daily Nation | 3 Mar 2011]
[Daily Nation | 20 Mar 2011]
[Daily Nation | 18 Apr 2011]
[Daily Nation | 20 Apr 2011] 
[Daily Nation | 7 Jun 2011] 
[Kenya Human Rights Commission | 11 Oct 2010] 

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Nigeria: | Ogun State Truth and Reconciliation Committee

africa nigeriaNAME OF MECHANISM

Ogun State Truth and Reconciliation Committee

PERIOD OF OPERATION

September 2011 – present

MANDATE AND OPERATIONS

Mandate: To investigate the eight-year administration of the previous governor of Ogun State, Gbenga Daniel.

Staff: Judge Pius Akinremi (Rtd.) (chair), Dolapo Akinsanya, Bamidele Aturu and Justice Akanbi. The Nigeria Bar association will nominate an additional committee member. Civil society organisations will be invited to serve as observers.

RESOURCES

Ogun State Government official website

BACKGROUND

The current governor of Ogun State announced that the committee is intended to “draw a line under past excesses and move the state forward” [Next | 6 Sep 2011]. The committee will look into illegal activities and human rights abuses committed by the state’s previous administration, including economic crimes and killings of civilians [Vanguard | 6 Sep 2011].

SOURCES

[Next | 6 Sep 2011]
[Vanguard | 6 Sep 2011]

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Burundi: | Truth and Reconciliation Commission

africa burundiNAME OF MECHANISM

Truth and Reconciliation Commission

PERIOD OF OPERATION

Expected to be established in 2012 and to run for one year.

RESOURCES

National Consultation on Transitional Justice Mechanisms Report [2010] (In French)

BACKGROUND

In July 2011, Burundi President Pierre Nkurunziza announced that a Truth and Reconciliation Commission would be established in 2012, after a delay of several years. He also suggested that a special tribunal would be formed after the commission completed its work [ReliefWeb| 27 Jul 2011]. 

In 2004, the United Nations (UN) sent a team to Burundi to assess the feasibility of undertaking transitional justice mechanisms in the country. Such mechanisms were provided for in the Arusha Peace Accords. The team recommended two mechanisms: a truth commission “to establish the historical facts of the conflict, determine its causes and nature, classify the crimes committed since independence in 1962, and identify those responsible,” and a special chamber within Burundi’s judicial system to “prosecute those bearing the greatest responsibility for genocide, crimes against humanity and war crimes.” The UN Security Council supported these recommendations with Resolution 1606 in 2005.

While the Burundi government agreed to the proposal, it and the UN could not reach agreement on whether amnesty would be granted for genocide, crimes against humanity and war crimes; what the relationship would be between the commission and the tribunal; and what degree of independence the tribunal’s prosecutor should have [BINUB | 2009].

In November 2007, a Tripartite Steering Committee was set up to conduct a national public consultation on transitional justice. The committee, which submitted its report to the UN in December 2010, consisted of Joseph Ndayizeye and Eularie Nibizi for civil society, Festus Ntanyungu and Francoise Ngendahayo for the government and Ismaël A. Diallo for the UN. After consulting 3,887 people, the committee completed its report in April 2010. Those Burundians represented in the consultation voiced a desire for both a truth commission with a mix of local and international commissioners that would investigate the period 1962–2008 (23% percent said they would prefer the period to be up to the present) and a hybrid special tribunal (with the majority preferring Burundian judges), both with broad mandates. Respondents also called for collective, symbolic and individual reparations, in order of priority. The respondents were only asked to rate the mechanisms that had already been proposed for the country, however, and were not asked whether they would prefer another approach and what this could look like.

SOURCES

[BINUB | 2009]
[ReliefWeb| 27 Jul 2011]

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Nigeria: | Osun Truth and Reconciliation Commission

africa nigeriaNAME OF MECHANISM

Osun Truth and Reconciliation Commission

PERIOD OF OPERATION

17 February 2011 – present. The commission began public hearings on 22 March 2011 and ended them on 25 May 2011.

MANDATE AND OPERATIONS

Mandate: The commission was established by Section 2(1) of the Commission of Inquiry Law (Cap. 29, Laws of Osun State, 2002) by Osun State Governor Rauf Adesoji Aregbesola “to inquire into the causes and incidents of gross human rights violations and public discontent in the state from June 1st, 2003 till date.” Its mandate is to facilitate redress for victims, promote reconciliation, prevent the recurrence of past human rights violations and recommend institutional reforms.

The commission has the power to summon individuals to testify. Petitioners and respondents are allowed to have legal counsel during public hearings.

Staff: Rt. Hon Justice Samson Odemwingie Uwaifo Yunus (chair), Yunus Ustaz Usman, Ayo Atsenuwa, Funmi Falana, Hakeem Yusuff, Bamidele Aturu, Rufus Oyatoro and Nurudeen Ogbara (secretary).

RESOURCES

Osun Truth and Reconciliation Commission official website

RESULTS

The commission has received roughly 700 petitions from the public, which deal with issues such as political victimisation, police brutality, affairs relating to chieftaincy, administrative irregularities and economic and social rights abuses, such as illegal acquisition of land [TNV | 8 Jul 2011]. More than 60 percent of the petitions involve allegations of human rights violations by government forces, including the police, the military, the Nigerian Civil Defense Corps and the Security Service [Osun TRC | 2011].

Osun State Governor Aregbesola and his predecessor, Olagunsoye Oyinlola, were summoned to testify before the commission [All Africa | 22 May 2011].

BACKGROUND

Osun State has been the site of intercommunal and state-sponsored violence, particularly since 1993. When Governor Aregbesola came to power, he vowed to address these issues by establishing the commission.

SOURCES

[All Africa | 22 May 2011]
[Nigerian Voice | 8 Jul 2011]

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