On Thursday 26 March 2011, members of the Kenyan Truth, Justice and Reconciliation Commission (TJRC) led by Ms Tecla Wanjala Ag. Commissioner, visited Kenyan refugees living in Kiryandongo refugee settlement in north-western Uganda. Kenya’s 2007 national presidential elections were marked with violence resulting in loss of lives, widespread displacement and consequently, a TJRC was established with a view to conduct investigations into the violence.[1] During the visit, commission officials conducted interviews and discussions on how refugees can be included in the transitional justice processes about to kick off in Kenya, inviting the community to air out their grievances and offer suggestions. Concerns were voiced over the possibility that those who fled the election violence of 2007 being automatically labelled as perpetrators upon their return, along with uncertainties over repossessing properties, including land and questioned whether they can enjoy security upon return. The TJRC also in turn recorded refugees’ stories to share with the rest of the country and for inclusion in the transitional justice processes. Participants’ willingness to speak on camera about their experiences as refugees and fears associated with return are indicative of the importance attached to the transitional justice process by Kenyan refugees.[2]

The above visit fundamentally contributed to the development of transitional justice processes in the Great Lakes Region by practically facilitating the participation of refugees living in exile in the development of transnational justice mechanisms. It represents a step forward in developing and understanding the complex relationship between forced migration and transitional justice. It remains to be seen whether the refugees’ views will be incorporated into the emerging Kenyan process and whether doing so will enable them obtain justice and eventually facilitate return for this population.

This article aims at contributing to the vast transitional justice literature by using Kenya’s TRJC as a case study to illustrate the complex relationship between forced migration and transitional justice.[3]

BACKGROUND TO THE KENYAN REFUGEE SITUATION

The Kenyan refugees presently in Uganda arrived in the country between 2007 and 2008 as a result of the violence that erupted during the 2007 Kenyan presidential elections. Since it gained independence from Britain in 1963, Kenya had enjoyed a reputation of a relatively stable democracy within the East African region, until the disputed 2007 presidential elections that led to the worst ethnic unrests in Kenya, changed the status quo.[4] It was the first time Kenya generated significant numbers of refugees as well as IDPs, thus joining the ranks of other refugee-generating countries in the Great Lakes region.[5] The Office of the United Nations High Commissioner for Refugees (UNHCR) in 2008 reported that over 12,000 Kenyan refugees had crossed into Uganda.[6] Some of the Kenyan refugees returned spontaneously soon after arrival. Others, however, found themselves unable to return, as long as the issues which contributed to their flight remained unresolved. As is usually the case with residual populations that remain after repatriation, individuals in this group cited a variety of individual and community concerns related to return. As refugees cannot be returned (refouled) to their country of origin under duress,[7] such residual populations often remain in the country of asylum permanently or until they become convinced that conditions have improved sufficiently for them to risk going home. A demonstrated willingness on the part of the home country to engage in transitional justice processes, improve governance – and otherwise ensure that the original violence does not recur – can be key to facilitating return. The refugee community consultations carried out in Kiryandongo refugee settlement camp can be viewed as an attempt to restore confidence among the refugees through demonstrating that the Kenyan state is genuine in its desire for an inclusive and just society.

TRANSITIONAL JUSTICE OFFERING THE HOPE OF A DURABLE SOLUTION FOR REFUGEES

Transitional justice as a field concerns itself with how societies address legacies of past human rights abuses, mass atrocity (including genocide and civil war) in order to build a democratic, just and a peaceful future.[8] Transitional justice relies in part on international law to provide the legal frameworks necessary in order to hold states responsible for halting on going human rights abuses, investigating past crimes, identifying persons responsible for human rights violations,[9] prevention of future human rights abuses, preserving and enhancing peace, providing reparations to victims, and fostering individual and national reconciliation.[10]

The inclusion of all affected parties, and of victims in particular, in the planning and execution of any transitional justice process has increasingly been recognised as crucial to the proceeding’s success, and has resulted in the increased popularity of quasi-judicial bodies such as truth and reconciliation commissions which provide greater opportunity for victim participation than formal legal processes. Victims having a voice in the proceeding is now recognised as a crucial component of justice and is held forth by some as conducive to psychological healing. By including voices in exile in the transitional justice processes, decision-makers can hope to increase the willingness to return among those who have been consulted by demonstrating the value they attach to the refugees as citizens and communicating acceptance. The psychological impact for forced migrants of feeling heard cannot be overemphasised.

To date, policy connections between transitional justice and forced migration have largely been limited to the internal displacement context. For example, the UN Framework on Durable Solutions states:

‘IDPs who have been victims of violations of international human rights or humanitarian law, including arbitrary displacement, must have full and non-discriminatory access to effective remedies and access to justice, including, where appropriate, access to existing transitional justice mechanisms, reparations and information on the causes of violations.’[11]

The UN Framework on Durable Solutions also holds states as being primarily responsible for addressing the needs of its displaced population with the assistance of humanitarian agencies and other international organisations. The same logic which has been used in the internal displacement context can easily be extended also to externally displaced refugee populations, particularly as similar factors are often at play in both internal and external displacement. In some conflicts, it may be a matter of mere chance whether the camp an individual flees to is located on one or the other side of an international border. For the refugees who fled the Kenyan election violence, the mere fact of having crossed an international border should not act as a hindrance to their accessing effective remedies including existing or prospective transitional justice mechanisms including reparations and the ability to speak publicly about the violence of which they have been victims.

In the Great Lakes Region a tendency has developed for countries to indiscriminately label those who flee across borders as the perpetrators of the violence. Indeed, there have been instances where perpetrators have found it easier to hide among bona fide refugees outside of their country’s jurisdiction.[12] Above all, however, this argument has provided a convenient scapegoat for regimes unwilling to examine and address the often deep-rooted social and political problems that manifest in sporadic violence. With those who fled both conveniently absent and vilified by the authorities, former neighbours who remained in the country can benefit from their compatriots’ inability to return by taking over their land and property. Once this happens, it becomes even more difficult for refugees to risk return. Moreover, return, also known as voluntary repatriation as far as refugees are concerned, is considered the preferred durable solution because it is the closest to restitution, theoretically placing the refugee in roughly the same position they were in prior to flight.

The Kenyan TRJC’s decision to reflect the voices of those living in exile in the transitional justice process demonstrates a respect for the refugees’ rights as Kenyan citizens, and also makes it easier for individuals to make informed decisions on whether to continue living in exile or return home in the near future. A majority of the refugees were excited to make contact with fellow countrymen involved in the reconciliation discussions, and commented that they have not, after all, been forgotten as they had feared. They described at length the refugee experience and expressed hope that they will be able to return home once their issues have been resolved by the TRJC and safety assurances been guaranteed when they choose to return.

Although the true impact of this single consultation is not yet known, it nevertheless remains noteworthy that voices in exile have been included in transitional justice processes.

In summary, through its groundbreaking decision to include refugee voices in its consultations, the Kenyan TRJC has effectively acknowledged and acted upon a little understood link between transitional justice and forced migration.

CONCLUSION

The gesture by the Kenyan TJRC can be summarised as ‘leading by example’. Africa’s history is marked by civil unrests resulting in gross human rights violations and massive population movements. Given these historical circumstances, it is crucial that transitional justice processes in the region be capable of addressing issues of refugee flight. The Kenyan TRJC has proved that it is possible to be living in exile and yet still be heard and included in the justice processes of one’s country. Whether displaced internally or externally, those who flee violence deserve the right to participate as citizens in rebuilding, reshaping and transforming their country. More work is needed in the transitional justice field to determine the best ways in which victims forced into flight can be heard. In particular, explicit connections must be made between victims’ right to restitution and refugees’ right to return home in safety and dignity. With Kenya taking the lead and Uganda about to embark on its own transitional justice process aimed at addressing the legacy of the more than two decade civil war between the Lord’s Resistance Army and the Government of Uganda, the question remains: will our country, Uganda take Kenya’s example to heart and include the diaspora in its deliberations?

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* Bernadette Iyodu is senior legal officer/coordinator of the Asylum and Durable Solutions Programme, Refugee Law Project Faculty of Law, Makerere University.
* Please send comments to [email protected] or comment online at Pambazuka News.

NOTES

[1] International Centre for Transitional Justice (ICTJ) focusing on Kenya; http://www.ictj.org/en/where/region1/648.html (accessed 28 March 2011).
[2] Visit was captured by NTV and video clip of the visit is available at http://bit.ly/hrrKlQ (accessed 28 March 2011).
[3] There have been previous studies conducted in this area analysing the relationship between refugees, internally displaced persons and transitional justice. For example some authors have argued that refugees, like internally displaced persons have a primary interest to be actively involved in processes that improve the conditions in their countries of origin. See Susan Harris Rimmer (2010) Reconceiving refugees and internally displaced persons as transitional justice actors, available at http://bit.ly/gS7L4f (accessed 28 March 2010).
[4] Global Peace Convention, Kenya initiatives (2010) http://www.globalpeaceconvention.org/kenya-initiatives/an-agenda-for-peace.html (accessed 28 March 2011).
[5] 2007 – 2008 Kenyan crisis http://bit.ly/gmtDCC (accessed 28 March 2011).
[6] UNHCR, Number of Kenyan refugees in Uganda rises to 12,000, 5 February 2008 http://www.unhcr.org/47a886fc2.html (accessed 28 March 2011).
[7] The 1951 Convention relating to the Status of Refugees, article 33(1).
[8] The Encyclopedia of Genocide and War Crimes Against Humanity (2004) vol.3 pp1045-1047.
[9] The four Geneva Covenants and First Additional Protocol obliges states to investigate and charge those responsible for breach of international humanitarian law; see Covenant I, article 49; Covenant II, article 50; Covenant III, article 129; Covenant IV, article 146; Protocol I, article 85.
[10] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, General Assembly Resolution 60/147 of 16 December 2005; available at http://www2.ohchr.org/english/law/remedy.htm on the right to an effective remedy, see Convention for the Protection of Human Rights and Fundamental Freedoms, article 13 and African Charter on Human Peoples’ Rights article 7; The right to a remedy and reparation for victims of violations of international human rights and humanitarian law - Note by the High Commissioner for Human Rights - E/CN.4/2003/63 – 27 December 2002 http://bit.ly/hUXlgd
[11] UN Framework on Durable Solutions for Internally Displaced Persons (2009).
[12] An example of situations where perpetrators have hidden amongst bona fide refugees is the case of the 1994 Rwanda genocide; perpetrators took advantage of mass victims and survivors of the genocide flights to neighbouring states seeking refuge and were granted prima facie refugee status. See International Refugee Rights Initiative & Refugee Law Project (2010) A dangerous impasse: Rwandan refugees in Uganda June 2010, p14. Available at http://bit.ly/hI1vqf (accessed 28 March 2010).