Reporting Transitional Justice in Kenya: Challenges and Opportunities

‘Transitional justice’ (TJ) is arguably not a very common phrase in Kenyan media circles despite the fact that journalists have been reporting on it for decades now. And when you talk about it today it arouses references on the International Criminal Court (ICC) only leaving out a huge chunk of processes that are in practice mechanisms on transitional justice. 

Looked at from that angle then reporting on transitional justice in the wake of what has come to be referred to in this country as the ICC Process presents journalists in Kenya (read Kenyan journalists) with a myriad of challenges cum opportunities. 

The International Center for Transitional Justice (ICTJ), sees it as “all efforts to help societies deal with the legacy of mass human abuse.” As ICTJ acknowledges, this is a broad spectrum of efforts which may include; “national prosecutions of alleged perpetrators but also international and hybrid tribunals, truth commissions, reparations for victims, and institutional reforms.” And as Howard Varney, a senior consultant with ICTJ would have us reflect, TJ is about “confronting the past so as to build a stable, peaceful, and democratic future.”

At the international level TJ has a long history from the days of post World War II with the establishment of such tribunals as Nurenberg and Tokyo that dealt with the crimes of the war. At the continental level one traces it with the establishment of such ad hoc tribunals as the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL) associated with the cases of the Rwanda 1994 genocide and the decade long civil war in Sierra Leone which ended in January 2002, respectively.

The above processes, as well as the International Criminal Tribunal for the former Yugoslavia (ICTY) have come to be documented as the journey travelled by the world in getting the International Criminal Court which many would refer to easily when asked about TJ today. This is a broad history and one would just guess right that as TJ developed, it’s reporting also developed. After all, journalism in the form of media and documentation, is as old as humanity itself. 

But we also have a number of processes that societies have undertaken especially in Africa that have been critical in TJ. The ICTJ mentions in a handbook on TJ reporting where much of the above information is quoted, peace agreements are critical TJ mechanisms as has been witnessed in the recent years world over. 


A quick look in our region presents the signing of the Comprehensive Peace Agreement (CPA) between the Government of the Sudan and the Sudan People’s Liberation Movement (SPLM) in 2005 as a good example. This 2005 peace agreement also brought to an end, in a big way decades of civil war between what is now South Sudan and the larger Sudan.
 

So then what are the challenges and opportunities for a Kenyan journalist reporting on transitional justice today?  

First is its broad history that the journalist is required to understand if not to master, and this requires a lot of reading, referencing, and referrals which a faint heart won’t have patience for. This is in addition to the fact that TJ mechanisms are expanding with every rising sun. 

Tom Maliti, one of the journalists who has covered TJ for quite a while in Kenya says reporting on the ICC process alone is demanding on the breath one has to read to grasp the developments of just the Kenyan situation cases, leaving out the other situations currently  before the ICC. “Each document, for instance, of the amended charges for each case is 42 pages,” reflects Maliti. Now imagine reading, other documents with thousands of pages either at the ICC or at the ad hoc courts handling TJ cases.

Still on the ICC, there is what can arguably pass as the challenge of dealing with the shadow effect of the character of the former prosecutor of the ICC, Louis Moreno-Ocampo. May be this is the result of the Kenyan media portrayal of Ocampo and the ICC. Ocampo came to be known among Kenyan masses as a no-none-sense man, yes, but also almost a kind of merciless individual. With him was the face of the ICC. Now, although he has left the office and Fatou Bensouda is in charge of the prosecution division of the ICC, Ocampo’s name has refused to leave the stage. The media (and especially mainstream) still talks of Ocampo 4, and every time you debate about the ICC there is a very quick reference to him even when it is unnecessary. Many a radio talk show hosts can testify this. That they have had to remind their audiences that Ocampo is no longer with the ICC. The effect of this has been the derailing of the growth of ICC reporting in the country and misinformation on the court processes and procedures. 

Thomas Obel Hansen of United States International University (USIU) says there are dangers that come along when TJ is reported uncritically. He says elites capture and manipulate the debate and that can divert the overall mission of TJ. 

On uncritical and misinforming reports on the ICC Tom Maliti argues journalists in the country have not been sharp in getting their facts right especially on the referral. “The idea that the ICC cases can be moved to somewhere else […] it is not automatic that the cases can be moved.”

In the Rome Statute, the law that establishes the jurisdiction of the ICC, the above issue is handled in Article 17 under the subtitle ‘Issues of Admissibility’ and points to this procedure that Maliti is talking about. That there has to be seen a demonstration of the willingness and ability to investigate and prosecute a certain individual case before the ICC for it to be ‘pulled’ out. Perhaps Kenyan journalists have not critically questioned this ‘demonstration and ability’ by the government but have only reported proceedings of the resent African Union meeting in Ethiopia and other diplomatic attempts that sought to revert the process.

The other challenge is about the competition between political processes and TJ processes. It is the question of: who has been informing the masses largely about TJ in the country, and we know better it is the politician. While on a legal basis TJ processes are largely judicial, their interpretation is being done by the political class who have their agenda, hence misinforming the public and manipulating the processes, especially the ICC one. 

Or maybe TJ processes are political after all as Maliti also argues and therefore should be treated politically. He argues the crimes under TJ cannot be committed unless one has political power, “so the ICC process is a political one”. Could Kenyan journalists be at such a crossroad of not being able to make a clear distinction of political processes and judicial ones?

Challenges aside the Kenyan media will have a vital role to play if TJ is to be finally achieved in Kenya like every media in a state going through transition has had, a role in which lies their opportunities. 

Picking on the experiences of Sierra Leone, Ibrahim Tommy, a former journalist currently working for the Center for Accountability and the Rule of Law in Sierra Leone (CARL-SL)  advices that journalists should always remember the overall aim of TJ in confronting that ugly past. That’s why he says to “bring closure to a brutal or violent past, cherry picking the issues won’t help. A holistic coverage would better serve the interest of the victims and promote a peaceful society.”  

The opportunities for the Kenyan media are thus embedded in the history of the TJ in the country. Actually if the work of the Truth Justice and Reconciliation Commission is anything to go by, we have been in transition since independence. It will be noted that the TJRC is to help us come to terms with all the historical injustices we have gone through as a people since we hoisted our flag. In essence then there are so many opportunities on reporting on TJ by reporting on the process of the TJRC alone. Journalists did their best to report on its past activities, now as it prepares to report back its findings it’s high time we got ready to lead the people of Kenya in coming to terms with the findings and eventually in the final process of reconciliation. If indeed we have festering wounds in our history the media will have a key role in reporting these findings objectively to heal the said wounds.

Besides this we have peace negotiations, if you like, conflict mitigation processes that have been launched in several places in the country between communities. Seen critically such measures have the grass root effect of the Rwandan ‘Gacaca Courts’ which have been hailed for assisting Rwanda to move away from the ghost of the Genocidal past. But that only depends on whether these agreements are well executed. The media can report on this in a way that critically analyses the effect of bottom up approaches to lasting democratic solutions in the transition from these past injustices. One key question would be: have the peace negotiations and agreements put into consideration past causes of conflict and thereby put in objective measures to address them?

The ICTJ handbook on reporting TJ puts emphasis on building of memorials as part of the process of reparations to victims of human abuses. Now talking of memorials one is quick to remember the memorial of the Sachangw’an fuel fire in 2009 at the very spot the accident occurred. But this is not in the bracket of T.J. So may be journalists can start reporting towards the establishment of memorials in key spots where serious human rights abuses were reported. Like? Like the Wagalla Massacre spot and hot spots of post election violence such as the Kiambaa church and the Naivasha house where a whole family is said to have been burnt. The media can also keep on reporting more on such historical memorials of the likes of Tom Mboya who are surely victims of human rights abuses.

Kwamchetsi Makokha, a veteran journalist in the country says even for those who want to report on the ICC process there are opportunities. The new story lies in “deconstructing the Hague court concept. Localize the court process,” he advices. “Communicate hope rather than despair even to the accused […] if in truth they did nothing the cases will be thrown out. Stop focusing on the negatives at the ICC. ” 

Makokha falls short of saying the media should ask serious questions of the involvement of every community on P.E.V. “Is the trial at the ICC a complete picture or are there other people who were involved? What about the 5,000 cases? How robust are conversations on the ICC at the grass roots or are the communities silent? If so how do we negotiate the community silences?”

On the other hand journalists can just recount the painful history of transition again and again for the Kenyan masses so they are informed of where they are coming from. This includes but is not limited to tracing the story of the second liberation in Kenya and trying to see if there could be a real narrative that has never been told to date. It’s also about reporting on institutional reform: constitutional, judicial, police and the whole renaissance of the Kenyan state as expected in the new devolved units of government.

All in all there is a call for journalists to focus more on the victims of human rights abuses than the perpetrators of the atrocities. The opportunity is in changing the narrative and letting the victims speak for themselves.