BEYOND LAW: A CRITIQUE OF THE PARTICIPATION OF
WOMEN IN THE TRUTH, JUSTICE AND RECONCILIATION
COMMISSION’S PROCESSES USING MOMBASA, KENYA
AS A CASE STUDY
Annette Mudola Mbogoh
DPhil Candidate (SEARCWL-UZ)
Supervisors: Justice Dr. Amy Tsanga and Prof. Patricia Kameri-Mbote
A dissertation submitted in partial fulfilment of the requirements of the
Doctor of Philosophy Degree in Law, Southern and Eastern African
|Regional Centre for Women’s Law, University of Zimbabwe, 2016
i
ABSTRACT Truth commissions offer transitional countries emerging from conflict with an opportunity to re-tell, reflect, document and redress gross human rights injustices that were meted on victims by state actors paving way for reconciliation in post-conflict states. Like other public processes, they must be gender sensitive and inclusive for sustainable peace to be achieved. Therefore, participation, more so women‘s participation, in truth commission processes has been alegal requirement and an example of democratic exercise of citizenship. It is against this backdrop that the study herein is hinged. In Kenya, the National Dialogue and Reconciliation Framework that officially ended the 2007-2008 post-election violence provided for the establishment of a Truth, Justice and Reconciliation Commission. The participation of women in the Kenyan TJRC was explicitly provided in its constitutive law. Nonetheless, this empirical research shows that the law is insufficient to guarantee women‘s full and active participation in the TJRC, or other truth commission, due to complexities arising from a gendered legal mandate, prohibitive normative systems, societal stereotypes and attitudes on the place of women in the public space and intersectionality of differences amongst women. The study analyses these themes by interrogating the contested concepts of participation, power, gender, representation and intersectionality. The research used qualitative research methodologies relying mainly on grounded theory, case study and ethnographical approaches. The study found that the extent and nature of women‘s participation was inadequate as spaces of participation aretranslatedinto spaces of power between women and men, state and non-state actors and amongst women themselves within a patriarchal society. The spaces of participation also become sites of contestations of the multi-layered identities of women, which then impacts on women‘s perceptions of their representation within truth commission processes. As a result, the accounts of women‘s experiences of violence are skewed and inapplicable to the TJRC‘s legal mandate. The study uses the experiences of women in Mombasa County, Kenya to illustrate these complexities whilst drawing on the practices of the South African and Peruvian predecessor truth commissions. The thesis ends by recommending raising the consciousness of women to build power within for active participation and the establishment of community based truth-telling processes that will create more women‘s friendly and safe spaces for their participation.
ii TABLE OF CONTENTS
ABSTRACT ------ii TABLE OF CONTENTS ------iii DECLARATION ------vi DEDICATION ------vii ACKNOWLEDGEMENTS ------viii LIST OF INTERNATIONAL INSTRUMENTS ------x LIST OF ABBREVIATIONS ------xi LIST OF STATUTES AND NATIONAL POLICIES ------xiv LIST OF CASES ------xv LIST OF TABLES ------xvi LIST OF DIAGRAMS ------xvi CHAPTER ONE: INTRODUCTION ------1 1.1 Righting Wrongs: The Road Map to Achieving Peace, Justice and Reconciliation in Kenya 1 1.2 The Law on Women’s Participation in Peace Processes.------3 1.2.1 International Declarations ------4 1.2.2 International Instruments ------5 1.2.3 National Laws ------6 1.3 Justification of the Study. ------7 1.3.1 Complexities of Gender Approaches in Truth-Telling Processes ------8 1.3.2 Inadequacy of Legal Mandate of Truth Commissions ------12 1.3.3 Spaces of Participation, Spaces of Power ------13 1.4 Statement of the Problem. ------15 1.5 Main Goal and Objectives of the Research ------16 1.6 Assumptions and Research Questions. ------16 1.7 Conclusion. ------18
CHAPTER TWO: THE THEORETICAL UNDERPINNINGS OF THE STUDY ------19 2.0 INTRODUCTION ------19 2.1 Theories of Power ------19 2.1.1 The Forms of Power ------20 2.1.2 The Dimensions of Power ------22 2.1.3 The Spaces of Power ------26 2.1.4 The Levels of Power ------28 2.2 Feminist Legal Theory. ------30 2.2.1 The Power of Law ------31 2.2.2 Using the Law to Spearhead Feminist Interest: A Mirage or a Reality? ------32 2.2.2 A Feminist Analysis of the Concept of the State in Transitional Justice Contexts ------35 2.3 The Intersectionality Theory ------37
iii 2.4 Conclusion ------41 CHAPTER THREE: BACKGROUND TO TRANSITIONAL JUSTICE AND TRUTH COMMISSIONS ------42 3.0 INTRODUCTION ------42 3.1 Transitional Justice: Its Origin and Critiques ------42 3.1.1 Defining “Transitional Justice” ------44 3.1.2 Choosing Transitional Justice Mechanisms for Post-Conflict States ------45 3.2 Feminist Critiques of Transitional Justice ------47 3.2.1 Theories of Justice Vis-À-Vis Transitional Justice ------49 3.2.2 A Feminist Analysis of the Law and the State. ------52 3.3 Truth Commissions as Transitional Justice Mechanisms ------55 3.3.1 Definition of a Truth Commission ------57 3.4 The Relevance of Truth Telling Processes. ------59 3.4.1 The Realisation of the Right to Truth ------59 3.4.2 Establishing an Accurate Record of a Country’s Repressive Past ------61 3.4.3 Assessing the Impact of Truth Commissions ------63 3.5 Transitional Justice within the Kenyan Context. ------64 3.6 Truth Telling Processes in Kenya. ------66 3.6.1 Gender Considerations in the Work of the Task Force. ------67 3.6.2 The Realities of the Kenyan Truth, Justice and Reconciliation Commission ------69 3.6.2.1 Organisational Structure of the TJRC ------70 3.6.2.2 Operational period of the TJRC ------74 3.7 Conclusion ------74
CHAPTER FOUR: RESEARCH METHODOLOGIES AND METHODS ------76 1.0 INTRODUCTION ------76 4.1 Research Methodologies ------76 4.1.1 Why a Qualitative Research Design. ------76 4.1.2 Grounded Theory ------79 4.1.3 Case Study Approach ------85 4.1.4 Ethnographic Approach------88 4.2 Research Methods ------91 4.2.1 In-Depth Interviews ------92 4.2.2 Focus Group Discussions ------95 4.2.3 Observation ------99 4.2.4 Secondary Data Sources ------102 4.3 Conclusion ------103 CHAPTER FIVE: THE DYNAMICS OF WOMEN’S PARTICIPATION IN THE TJRC USING MOMBASA COUNTY AS A CASE STUDY ------104 1.0 INTRODUCTION ------104 5.1 The Nature and Level of Women’s Participation ------105 5.1.1 The Invited Space of Civic Education ------107 5.1.1.1 Level of Awareness on the TJRC, its Role and Mandate. ------107
iv 5.1.1.2 Applying Arnstein’s Ladder of Participation to the Civic Education Space ------111 5.1.2 The Invited Space of Statement Taking ------114 5.1.2.1 The Statement Takers and their impact on Women’s Participation ------115 5.1.2.2 Interrogating Power within the Space of Statement Taking ------117 5.1.2.3 The Participation Framework of Statement Taking ------121 5.1.3 The Space of Public Individual Hearings ------125 5.1.3.1 The Structure of Public Individual Hearings------126 5.1.4 The Women’s only Hearings Space ------135 5.1.4.1 The Structure of the Women’s Only Hearings ------137 5.1.4.2 The Nature of Women’s Participation in the Women’s Only Hearings ------140 5.1.4.3 The Influence of the Private and Public Dichotomy ------148 5.2 The Legal Language of the Mandate of the TJRC ------153 5.2.1 The Legal Structure of the TJRC Vis-A’-Vis Women’s Participation ------154 5.2.2 The Deficiencies oft Legal Mandate of The TJRC In Relation To Women’s Participation ------157 5.2.3 Women’s Theory of Justice ------170 5.2 The Impact of Normative Systems on Women’s Participation. ------171 5.3.1 The impact of Gender Stereotypes on Women’s Participation ------174 5.3 Conclusion ------178
CHAPTER SIX: THE POLITICS OF REPRESENTATION ------180 1.0 INTRODUCTION ------180 6.1 The Dynamics aroundthe Chairperson oftheTJRCand Its Impact on Participation. ------180 6.1.1 The Challenges around Removal of the Chairperson ------184 6.1.2 The Re-assumption into Office by Amb. Kiplagat ------187 6.2 The Rules of the Game: The Case Selection Rules and Their Effect on Women’s Participation in the TJRC ------191 6.2.1 Analysing Representation in the Case Selection Rules ------196 6.2.2 The Multiple Identities of Women ------199 6.3 Descriptive Representation versus Substantive Representation ------204 6.4 Conclusion ------208
CHAPTER SEVEN: CONCLUSIONS AND RECOMMENDATIONS ------210 7.0 INTRODUCTION ------210 7.1 The Intricacies of a Gender Perspective to Truth Telling. ------210 7.2 The Inadequacy of the Law in Guaranteeing Feminist Considerations in Truth Commissions ------213 7.2 Power Relations within Spaces of Participation ------215 7.3 RECOMMENDATIONS ------217 7.3.1 Legal Strategies ------217 7.3.2 Non-Legal Strategies ------222 REFERENCES------227 APPENDIX ------249
v DECLARATION
I, ANNETTE MUDOLA MBOGOH, do hereby declare that this is an original work presented towards the award of the Doctor of Philosphy in Law, University of Zimbabwe, not previously presented for any degree or other award in any academic institution.
Signed...... Date......
This work is approved for submission towards fulfillment of the degree of Doctor of
Philosophy in Law by the Supervisors.
Signed...... Date......
Justice Dr. Amy S. Tsanga, Deputy Director, Southern and Eastern African Regional
Centre for Women’s Law University of Zimbabwe
Signed...... Date......
Prof. Patricia Kameri-Mbote, Dean, University of Nairobi-Parklands Law School,
Nairobi, Kenya
vi
DEDICATION
This dissertation is dedicated to my dear mother, Catherine Kageha Mbogoh, whose indomitable and perservering spirit and strength whilst bearing a debilitating condition, inspired me to run this race till the finish line. I love you Mommy. I hope you will be proud.
vii
ACKNOWLEDGEMENTS
I would like to express my sincere gratitude to every person, group and organisation that has contributed to finalizing this dissertation.It would have been impossible for me to reach this far without your support and encouragement. It has been a life-changing, humbling, longand lonely journey.
My appreciation and special gratitude goes to the Norwegian Agency for International
Development (NORAD) who through SEARCWL invested in my academic life and enabled me to pursue these doctoral studies.
Special thanks goes to all the women who openly shared their lives and experiences, the
Commissioners and staff of the now defunct Truth, Justice and Reconciliation Commission, the National Cohesion and Integration Commission, civil society organisations and other respondents for their time, knowledge and cooperation.
To my supervisors, Justice Dr.Amy Shupikai Tsanga, and Prof. Patricia Kameri-Mbote for their invaluable insight, guidance, patience and immense contribution to the creation of this piece of work.I specifically thank you for not giving up on me when I was unable to meet the deadlines. Special gratitude is also extended to Prof Julie Stewart and Prof. Doris Buss for their input and advice in writing this piece.
To the SEARCWL staff and my colleagues in the DPhil programme for their motivational support and readily offering assistance when needed.
To Kituo cha Sheria‘s Board of Directors and University of Nairobi-School of Law, Mombasa
Campus for allowing me to take study leave to finish writing this thesis. Thank you for the support.
To my dearest family and friends, who supported me from field-work to the final editing of viii this dissertation by understanding my need to ―hibernate‖ to finally finish these doctoral studies. I am sincerely grateful for your unending love, support and commitment to me throughout this programme.
Last but not least to the Almighty God for His never ending mercies, wisdom and strength.
Thank you all.
ix LIST OF INTERNATIONAL INSTRUMENTS
1. Universal Declaration of Human Rights (1948)
2. International Covenant on Civil and Political Rights (1976)
3. International Covenant on Economic, Social and Cultural Rights (1976)
4. United Nations Convention on the Elimination of all forms of Discrimination Against
Women (1981)
5. The African Charter on Human and People‘s Rights (1981)
6. Protocol to the African Charter on Human and People‘s Rights on the Rights of
Women in Africa (2003)
7. The Beijing Platform for Action
8. UN Principles on the Right to a Remedy and Reparations
9. Outcome Document of the Beijing +5 Special Session
10. UN Security Council Resolution 1325
11. UN Security Council Resolution 1889
x
LIST OF ABBREVIATIONS
ACCORD Africa Centre for the Constructive Resolution of Disputes
ACHPR African Charter on Human and People‘s Rights
ANC African National Congress
APP African People‘s Party
BPFA Beijing Platform for Action
CALS Centre for Applied Legal Studies
CEDAW Convention on Elimination of all forms of Discrimination against Women
CVR Comisión de la Verdad y Reconciliación
CONADEP National Commission on the Disappeared
FIDA Federation of Women Lawyers
FORD Forum for the Restoration of Democracy
GEMA Gikuyu, Embu and Meru Association
GNU Government of National Unity
GSU General Service Unit
IAP2 International Association for Public Participation
ICC International Criminal Court
ICESCR International Covenant for Economic, Social and Cultural Rights
ICCPR International Covenant for Civil and Political Rights
xi
IDP Internally Displaced Person
IPK Islamic Party of Kenya
KADU Kenya African Democratic Union
KAMATUSA Kalenjin, Maasai, Turkana and Samburu
KANU Kenya African National Unity
KTJN Kenya Transitional Justice Network
MRTA Movimiento Revolucionario Túpac Amaru
NALEAP National Legal Aid and Awareness Programme
NARC National Rainbow Coalition
NCIC National Cohesion and Integration Commission
NCI National Cohesion and Integration
NCGD National Commission on Gender and Development
NGO Non-governmental Organization
ODM Orange Democratic Movement
PNU Party of National Unity
PPSA Preservation of Public Security Act
SA TRC South African Truth and Reconciliation Commission
TJRC Truth, Justice and Reconciliation Commission
TJR Truth, Justice and Reconciliation
UMA United Muslims of Africa xii UN United Nations
UNFPA United Nations Population Fund
UNIFEM United Nations Organisation for Women
UNSCR United Nations Security Council Resolution
xiii LIST OF STATUTES AND NATIONAL POLICIES
1. Constitution of Kenya 2010
2. The Truth, Justice and Reconciliation Act 2008
3. National Cohesion and Integration ActNo. 12 of 2008
4. National Gender Policy
5. Vision 2030
xiv
LIST OF CASES
1. Nrb HCCC Miscellaneous Application No. 470 of 2009 Augustine Njeru Kathangu
and 9 Others –vs- TJRC and Bethuel Kiplagat
2. Nrb HCCC Civil Case No. 7 of 2012 Truth, Justice and Reconciliation Commission –
vs- The Chief Justice and Bethuel Kiplagat
xv
LIST OF TABLES
Table 1: Date and location of public individual hearings in Coast Region...... 127
Table 2: Commissioners' Hearings Panels for Mombasa, Kwale and Kilifi Counties ...... 128
Table 3: Sex Dissagregated Data on Witnesses in the Public Individual Hearings...... 133
Table 4: Summary of Women's Voices during the Women's Hearings of the TJRC ...... 142
LIST OF DIAGRAMS
Diagram 1: The Power Cube ...... 29
Diagram 2: Categories of Intersectionality Analysed ...... 39
Diagram 3: Sex Disaggregated Data of Respondents Interviewed ...... 94
Diagram 4: Catergories of Respondents Interviewed ...... 94
Diagram 5:Sex Disaggregated Data of Focuc Groups ...... 97
Diagram 6: Age of Respondents in Focus Groups ...... 97
Diagram 7: Ethnic affiliation of Victims of Violence Interviewed ...... 98
Diagram 8: Religious affiliation of Victims of Political Violence ...... 99
Diagram 9: Arnstein's Ladder of Participation (1969) ...... 112
Diagram 10: Sex Disaggregation of witnesses during the Public Hearings...... 131
Diagram 11: Strategies to Enhance Womens' Participation in Truth Commissions ...... 226
xvi
CHAPTER ONE: INTRODUCTION
This chapter gives a succinct overview of the entire study. Part One introduces the history of political violence in Kenya and the transitional justice initiatives following the 2007/2008 post-election violence. It analyses the ethnic related violence before, during and after the
1992, 1997 and 2007/2008 general elections focusing mainly of the Coast of Kenya. It further enumerates the constitutional, electoral and police reforms and reconciliation processes. Part
Two sets the stage by laying a legal basis for the full and active participation of women in peace processes at national and international levels. It draws from international human rights instruments, UN declarations and resolutions that promote women‘s participation in formalised peace processes. The discussionis then steered towards the significance of the study drawing from the experiences of truth commissions in South Africa and Peru in implementing a gender lens to their processes. The experiences of past truth commissions are juxtaposed to the Kenyan situation. Finally, Part Three narrates the statement of the research problem, the goal, specific objectives, assumptions and research questions of the study. In summary, the research questions seek to establish whether the Kenyan truth commission processes integrated the gender perspective and whether women‘s priority needs and concerns were incorporated in its narrative.
1.1 Righting Wrongs: The Road Map to Achieving Peace, Justice and Reconciliation in Kenya
Since 1992, human rights atrocities such as extrajudicial killings, internal displacement, torture, sexual violence and malicious damage to property have characterised political violence in Mombasa County(Kenya. Waki Commission Report 2008: 220, 222).1The 2007
1The political violence of 1992 and 1997 was premised on perceived and real disparities between the local communities, commonly referred to as wapwani, and the upcountry or migrant communities, branded wabara. The perception was that the upcountry communities had appropriated to themselves local resources at the expense of indigenous communities. The wapwani organized themselves and perpetrated violence against the upcountry people aimed at forcibly driving them out of the region (Waki Commission Report 2008: 219; Akiwumi Commission Report 1997:233-278). 1 general elections were however marked by unprecedented violence compared to the previous elections. The Coast of Kenya was affected alongside other parts of the country.2 More than
1,133 people lost their lives and a further 350, 000 were internally displaced (Kenya. Waki
Commission Report 2008: 345, 351).3
The ground for 2007/2008 post-election violence may have been laid after the peaceful 2002 general elections, where the ruling party Kenya African National Unity (KANU) suffered defeat by a strong and unified opposition. For many Kenyans, the ushering of the National
Rainbow Coalition (NARC) regime in December 2002, symbolized steps towards genuine democracy and redress for human rights abuses. A Task Force was hence established in April
2003 to collate views of Kenyans on the viability of a TJRC.
The Task Force report indicated that 90 percent of Kenyans demanded that the truth about the past must be known, perpetrators identified and punished and victims accorded justice through immediate establishment of an effective and credible TJRC (Task Force Report
2003:9,10, 12). The country lost the momentum of undertaking a truth-seeking exercise at that crucial transitional moment due to waned political impetus and disagreement between then
President Kibaki and his coalition partner Raila Odinga over power-sharing and constitutional reforms (Musila 2009: 449). That notwithstanding, the 2007/2008 electoral violence gave rise to renewed and incessant calls from the international community and civil society to prosecute the perpetrators of violence, bring justice to victims, and address the long standing historical injustices.
In February 2008, after mediation efforts led by Dr Kofi Annan, a coalition government was formed, with the two main warring party leaders –Mwai Kibaki of the Party of National Unity
(PNU) and Raila Odinga of the Orange Democratic Movement-appointed to serve as
President and Prime Minister respectively of the Republic of Kenya. One of the transitional
2Rift Valley, Nyanza and Nairobi regions were also flashpoints of violence in the 2007-2008 post-election violence. 3 Of the 1997 elections violence, it is reported that 100,000 people were displaced and at least 100 people were killed (Human Rights Watch Report 2002:24).
2 justice mechanisms that was set in motion is the Truth, Justice and Reconciliation
Commission.4
The participation of women in the processes of the TJRC was necessary for a complete record of the authoritarian regime and its impact on women and men. The rationale for ensuring women‘s participation in the TJRC is centred on the fact that women comprise a significant proportion of the Kenyan population. The Kenya Census reveals that 50.3 percent of the population is female as compared to the 49.7 per cent male populations (Kenya Census
Brochure 2009:1). Despite their significant numbers, women still remain in the periphery in the public and private domain. In addition, women comprised the majority of the victims of sex and gender based violence both during the 2007/2008 post-election violence and relative times of peace (Waki Commission Report 2008:244). So women, as a social group, experience systematic and deliberate group-based harm during times of conflict and under authoritarian regimes.
1.2 The Law on Women’s Participation in Peace Processes.
Recent developments in transitional justice and international human rights law discourse propagate for full and active participation of women in post-conflict reconstruction efforts.
The right to women‘s participation in peace and security decision-making has evolved as an established international norm and standard with the force of law (UNIFEM, 2000:4).As a state party to these international instruments, Kenya has a legal obligation to respect, realise, promote and protect women‘s right to participate in formal peace processes such as the TJRC.
In fact, article 2(5) and (6) of the Constitution of Kenya describes international human rights
4The transitional justice mechanisms in Kenya ran concomitantly and encompassed: constitutional reforms through the Constitution of Kenya 2010, land reforms, reconciliation and reparation through the TJRC, prosecutions of the perpetrators of violence bearing the greatest responsibility through the International Criminal Court, electoral and police reforms, national integration and cohesion programmes under the National Cohesion and Integration Commission, resettlement of Internally Displaced Persons.
3 treaties that have been ratified as part of Kenyan law.5The international declarations and instruments that promote women‘s participation in peace processes are highlighted hereunder:
1.2.1 International Declarations
Firstly, the Beijing Platform for Action (BPFA) specifically requiresgender mainstreaming in peace processes through policies and programmes. Governments, international and regional institutions are obliged under the BPFA to promote equal participation of women in all forums and peace activities at all levels, especially decision-making level.6
Secondly, the Outcome Document of the Beijing +5 Special Session calls on state parties to ensure and support women‘s participation in decision-making and implementation of peace processes(UNIFEM 2000).7
Thirdly, the ground-breaking UN Security Council Resolution 1325calls on all actors to adopt a gender perspective in negotiating and implementing peace agreements including involving women (UNSCR 1325).8The UNSCR 1325 further requires member states to increase the participation of women at decision-making levels in conflict resolution and peace processes.9It acknowledges that women and girls have special needs, which must be considered during repatriation, resettlement, rehabilitation and reintegration in post-conflict reconstruction. The resolution further requires all member states to be provided with guidelines and materials on the protection, rights and particular needs of women.10Finally, the
UNSCR 1325 requires state parties to put in place measures that protect and respect the human rights of women and girls, more so in relation to the police, judiciary, constitution and electoral system.
5Art 2(5) of the Constitution states ―The general rules of international law shall form part of the law of Kenya.‖ On the other hand, art 2(6) of the Constitution adds ―Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.‖ 6 Paragraph 142(a) 7See paragraph 86(b)
8 UNSCR 1325 was reached in October 2000 9 Paragraph 2 10 Paragraph 6 4 1.2.2 International Instruments
The Convention on Elimination of all forms of Discrimination against Women (CEDAW), the
African Charter on Human and People‘s Rights (ACHPR), the Maputo Protocol on Rights of
African Women among others, recognise meaningful and full participation of women in public peace processes as a human rights issue.11
In article 7, CEDAW provides that state parties must take all appropriate measures to eliminate discrimination against women in political and public life particularly in relation to their participation in formulation and implementation of government policy.The state is directed to ensure women participate in political processes within government or civil society organizations at all levels.Peace processes such as the TJRC are public functions thereby the state has an obligation to ensure women‘s participation and eliminate any form of discrimination against women therein.
Similarly, the African Charter on Human and Peoples‘ Rights (ACHPR) states that both men and women have the right to national and international peace and security.12 This right is only fairly conferred if both sexes are involved in peace making. Article 13 guarantees women‘s participation in political processes such as post-conflict reconstruction.
The Women‘s Protocol to the ACHPR provides the right to women‘s participation in peace processes and post-conflict reconstruction.13 It states that women have the right to a peaceful existence and to participate in the promotion and maintenance of peace. State Parties are directed to take appropriate measures to ensure increased participation of women in the following: programmes for peace education, creation of a culture of peace, structures and processes for conflict prevention, management and resolution at national, regional and
11See articles 3, 4, 5, 8, 10 and 14 of CEDAW, articles 13, 23 and 29 of the African Charter on Human and People‘s Rights, articles 9, 10 and 11 of the Maputo Protocol, paragraphs 1, 2 and 8 of the UNSCR 1325 and paragraphs 1, 6, 7, 8, 10, 14 and 15 of the UNSCR 1889. 12 See Article 23. 13 Article 10 of the Women‘s Protocol 5 international levels, and planning, formulation and implementation of post-conflict reconstruction and rehabilitation.
Finally, article 9 of the Women‘s Protocol directs State Parties to promote participative governance and equal participation of women in the political life of their countries through affirmative action, national legislation and other measures. This right is bolstered by article 2 of the said instrument,which places a duty on States Parties to combat all forms of discrimination against women through appropriate legislative, institutional and other measures.
1.2.3 National Laws
In the same vein, national laws that constitute transitional justice initiatives appreciate the need to incorporate women in peace and reconciliation processes. The Constitution of Kenya
2010promotes democratic forms of governance, including enhanced participation of women, which ensures sustainable peace. It enumerates participation of the people as a national value and principle of good governance; the term ―people‖ including both women and men.14 In article 10 (2) (b), the Constitution identifies other national values and principles of governance as ―human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.‖ Full realisation of these values and principles would translate to meaningful participation of women in formal peace processes such as the TJRC.
In article 27(1), the Constitution states, ―every person is equal before the law and has the right to equal protection and equal benefit of the law.‖ Additionally, article 27(3) provides that
―women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.‖ To a great extent, the Constitution
14See article 10(2)(a) that expounds on ―patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of people‖ as national values and principles of governance of the Republic of Kenya. 6 improves women‘s legal status by requiring that they have equal treatment with men in all spheres of life.
Similarly, the Truth, Justice and Reconciliation Act (hereinafter ―the TJR Act‖) promoteswomen‘s participation in the TJRC process by adopting specific mechanisms and procedures that are sensitive to women‘s experiences. In particular, the TJRC had power to adopt procedures and mechanisms that:
(a) Pay particular attention to gender-based violations; (b) Provide opportunities for the people to relate their experiences; and (c) Enhance accessibility
Under section 27, the TJRC was directed to employ specific procedures to effectively address the experiences of women, children, persons with disability and other vulnerable groups. In section 10, the TJR Act provides that in appointing commissioners, the selection panel shall have regard to the principle of gender equity and regional balance.
From the above discussion, it is clear that both national and international law create a platform or basis for advocating women‘s participation in peace processes including truth- telling processes.
1.3 Justification of the Study.
Despitenational and international laws promoting women‘s involvement in peace processes, it has been particularly difficult to achieve equality and non-discrimination within this sphere.
Women have been incapable of defining, shaping and advancing a feminist agenda within transitional justice spaces of participation to cause real, positive and transformative change for themselves in the public and private spheres. Hence the significance of the present study, as discussed hereunder,will be expounded under themes arising from the research assumptions.
7 1.3.1 Complexities of Gender Approaches in Truth-Telling Processes
The difficulties in ensuring women‘s participation in truth telling processes are attributed to the intricacy of gender approaches and what they entail. Edwards argues that the terms ―sex discrimination‖ and ―gender‖ are ―complex and unsettled‖ (Edwards 2008:5). The uncertainty, misunderstanding and unresolved meaning of the term gender and its approaches has resulted in truth commissions applying incomplete analyses of the consequences of gross human rights violations on women and men. The term ―gender‖ has been defined as the social constructs of masculinity and femininity as opposed to the biological differences of males and females (Mazurana and Proctor 2013:2; Bouta et al 2005: 3). Indeed to understand the experiences of women as women there is a need to juxtapose them to the experiences of men.
To achieve this, women ought to participate as women so that their experiences are heard alongside those of men.
Past truth commissions have applied a simplistic approach of ―adding and mixing women‖ in gendered legal systems, which are designed to respond to the experiences and needs of the men (Charlesworth and Chinkin 2000:50).15As a result, women are subjected to ―additional, different and or unequal criteria‖ within these truth-telling processes. In addition, such truth- telling processes fail to provide a complete picture of the impact of gross human rights violations on women and men. Literature shows that many truth commissions have experienced difficulties implementing a complete gender analysis (World Bank Report 2006: iii, ix). A case in point is the SA TRC that has been criticised by feminist scholars such as
Meintjes for failing to comprehensively engage with gender including probing its intersectionalities with race, ethnicity and class (Meintjes 2010:97).16Also, the SA TRC in its
15See article 27(8) of the Constitution of Kenya, sections 10, 27 and 30 of the TJR Act. These provisions are discussed in detail in Chapter 5 of the thesis. 16The establishment of the Truth and Reconciliation Commission in South Africa arose following its forty-five years history of apartheid. South Africa had legalized gender and race discrimination resulting in thirty years of armed resistance by the African National Congress (ANC) and other organised movements (Hayner 2011:27). The apartheid regime disenfranchised and deprived the social, economic, political and civil rights of the majority black population. The Nationalist Party based its ideology on Afrikaner nationalism and enjoyed majority 8 gender analysis equated women‘s experiences in violent conflictto sexual violence and or forms of sex discrimination rather than all forms of violence against women (Edwards 2008:
5). Theproblem with this approach is that it creates ―a two-tiered system of protection‖ wherein priority is provided for gender-related violence excluding all other forms of violence against women (Edwards 2008:5).Yet there is increasingly rich literature describing the manifold forms of victimization of women during conflict and tyrannical regimes (Meintjes
2001:1Goldblatt and Meintjes 1996:29; Shepherd 2007:239, 240; Cahn 2006: 335, 336;
Mazurana and Proctor 2013: 4, 5). Women face systematic and deliberate violence by warring factions; their bodies are battlegrounds for warring factions as they are raped, enslaved, physically assaulted, exposed to HIV/AIDS and internally displaced during armed conflict.
Rubio-Marin (2008: 345) expoundsthat ―such violence harms women as women because it rests on and exacerbates social meanings that feed the construction of gender relations as a system of dominance.‖
During the SA TRC processes, representatives of CALS and the Centre for the Study of
Violence and Reconciliation based in South Africa made a submission aimed at assisting the SA TRC to understand the manner in which gender forms part of the truth and reconciliation process (South Africa. TRC 1998, 4/10:284).17The submission explained that a gender perspective of a truth and reconciliation process ―requires looking at the way society locates women and men in relation to all areas of their lives. Thus, women‘s experience cannot be understood in isolation from men‘s, but only with reference to the intertwining of women‘s and men‘s roles and status in society generally- that is, with membership in Parliament. Its membership was drawn from Afrikaan and English speaking white South Africans that formed only 13 per cent of the population (Godobo-Madikizela 2005:vi). The apartheid regime was characterized by male dominance in key leadership positions; women comprised only 2.8 percent of parliamentary representatives (Godobo-Madikizela 2005: vi). Within the black population, only black, married men were allowed to access housing in townships; black women had no such capacity having been legally defined as minors (Meintjes 2010:99, 100).
17The workshop, which was convened by CALS, was held on 19th March 1996 at the University of the Witwatersrand. The meeting aimed at developing conceptual issues around gender that faced the TRC. The meeting involved lawyers, psychologists, NGOs, representatives of the TRC and members of the Gauteng Legislature. 9 women subordinate to men‖ (World Bank Report 2006:12). It examines human rights violations and pain and sufferingfrom a gender perspective (South Africa. TRC 1998, 4/10:
285).Goldblatt and Meintjes argue that the ―failure to approach the experience of human rights abuses through a gendered lens will lead to the neglect of women‘s experience of abuse and torture, for these are often seen as a male preserve‖ (World Bank Report
2006:17 citing Goldblatt and Meintjes 1996).
Therefore to exclude women from participation in truth-telling processesto the point that their experiences of violence are categorised only reinforces sexual hierarchies and sanctions gender specific violence. The study hence presented an opportunity to investigate whether the
Kenyan TJRC enabled women‘s participation to the point of interrogating the gender consequences of all forms of violence. The study presented an opportunity to investigate whether the Kenyan TJRC interrogated the intersections of gender, class, ethnicity etc in its analysis. This was particularly essential as the Kenyan TJRC replicated processes by the SA
TRC using it as model truth commission. Also, in Kenya, the truth-telling process took place in a terrain where there are deep-seated inequalities founded on ethnicity, class and gender.
Therefore, the study was necessary to unpack the intersectionality of ethnicity, class and gender and the impact that it has on women‘s participation on the TJRC. Normative systems such as religion, culture and the family may stifle women‘s participation in formal peace processes, which are largely riddled with politico-legal intrigues.
The Peruvian and SA TRC understood ―gender‖ to mean ―women‖ (World Bank Report
2006:9). The gender dimension has been limitedly viewed as a ―women‖ dimension rather than a dimension involving both ―women‖ and ―men‖. When truth commissions added women to their staff, formed a women‘s (or gender) unit, conducted ―special‖ hearings for women and topped it up with an isolated chapter for women (but dubbed ―gender‖) and or sexual violence, they commended themselves for having employed a gender perspective
(World Bank Report 2006:9). Through these ―women‖ rather than ―gender‖ measures, women
10 seem to validate their presence in these truth commissions and their experiences are compartmentalised rather than mainstreamed.
Although the SA TRC did not strictly undertake a gender analysis, it ensured that women‘s voices and experiences, which were usually ignored, were incorporated into the process.
However, the SA TRC chose to focus on women‘s experiences of violence rather than violence and its linkages to gender and power (World Bank Report 2006: 18 citing Ross
2003). On the other hand, the Peruvian CVR incorporated the gender dimension late into its processes. 18As a result, the gender paradigm was inadequately visible throughout the report (World Bank Report 2006:18). The CVR established a gender unit,which was not allocated specific resources to conduct its work. Consequently, the gender unitwas limited to conducting activities that were not resource-based e.g. interviewing victims who approached the CVR (World Bank Report 2006:14). The gender unit closely collaborated with international development agencies, such as the UN Office of the High Commissioner of Human Rights, United States Agency for International Development and the Spanish
Cooperation Agency, to enhance women‘s participation (World Bank Report 2006: 14).
In conclusion, the study looks into what constitutes a gender analysis of truth commission process. It entails examining how gender roles of women and men impacted on consequences of all forms of violence e.g. unlawful killings, forced disappearances. It also includes deliberately mainstreaming gender considerations in all the processes of the truth commission.
A proper gender analysis can only be achieved with full and active participation of women in order to give a voice to their experiences, priorities and concerns.
18The formation of the Peruvian CVR was hinged on the armed conflict between government and insurgent groups known as Partido Communista del Perú (Sendero Luminoso), Communist Party of Peru (Shining Path) and Movimiento Revolucionario Túpac Amaru (MRTA), Tupac Amaru Revolutionary Movement (Hayner 2011: 35; Peru Support Group 2004:2; Amnesty International 2004:1).18 Gross human rights violations such as forced disappearances, extrajudicial killings, torture, ill-treatment rape, violations of due process etc. and violations against international humanitarian law were witnessed in a number of areas during the period of violent conflict (Amnesty International 2004:1; Hayner 2011:35,36). 11 1.3.2 Inadequacy of Legal Mandate of Truth Commissions
The work of truth commissions is generally grounded in mandated pieces of legislation that set out its operational framework. The women‘s question is often inadequately articulated and even if it is, it is usually done in ways that ultimately neglect women‘s actual realities. For example, the limitations of the SA TRC were also partly encapsulated in its legal mandate.
The legal mandate did not include gender-specific crimes, sexualised or non-sexualised. The law referred to crimes of killings, torture, abduction and severe ill treatment as gross human rights violations, which were interpreted by the SA TRC from a gender-neutral perspective meaning the Commission was blind to the impact of these crimes on women and men.
Violence against women within apartheid was equated to ―sexual violence‖ and ―acts of torture and severe ill treatment‖. The legal language of the Act limited the SA TRC from investigating the gendered nature of the apartheid system (Meintjes 2009:106). Consequently, the Final Report of the SA TRC is critiqued for having failed to give a complete gender analysis of the effects of the apartheid regime.
Similarly, the Peruvian CVR had the same legal challenges as its constitutive law mandated it to investigate gross human rights violations such as unlawful killings, forced disappearances, unlawful detention, sexual violence and torture(World Bank Report 2006:ix). The legal mandate did not expressly state that crimes and gross human rights violations would include sexual violence. The Commission applied additional criteria ininterpreting its mandate to include sexual violence as a form of violence against women. It however failed to capture the systematic mistreatment of women and the heavy family burden they assumed in dealing with the consequences of killings and forced disappearances. The Peruvian Truth Commission has been critiqued for failing to adequately reveal the full extent of human rights violations and their implications on women (World Bank Report 2006: ix).
12 Drawing on these past truth commission, a central theme to this study on women‘s participation is whether the legal mandate of the Kenyan TJRC was an enabling framework for women‘s experiences and realities to be adequately considered.
1.3.3 Spaces of Participation, Spaces of Power
Space is fundamental in any exercise of power (Foucault 1979).Lefebvre asserts that ‗space is a social product… it is not simply ‗there‘, a neutral container waiting to be filled, but is a dynamic, humanly constructed means of control, and hence of domination, of power‘ (Mohan and Stokke, 2000: 263). ‗Spaces‘ are seen as opportunities, moments and chann els where citizens can act to potentially affect policies, discourses, decisions and relationships which affect their lives and interests (Gaventa 2006:12).
Participation is, if nothing else, about power; spaces of participation are spaces of power
(Brock et al 2001:5). Whether in strategies of mobilisation aimed at the transformation of power relations, or in the use of the technical to camouflage techniques of domination, participation is intimately entwined with the production and effects of power (Brock et al
2002:5). In this sense, participation as freedom is not only the right to participate effectively in a given space, but the right to define and shape that space (Gaventa 2006:11).
The extent to which women are given an opportunity to meaningfully participate is dependent on visible, hidden and invisible power exerted by actors within and without institutions such as the TJRC and by external and internal factors such as socialisation and self-esteem respectively. The politics of power then determine who participates, what they contribute and eventually the outcome of participation (Gaventa 2006:15). Visible power refers to the formal rules, structures, procedures and laws which are involved in decision-making (Gaventa
2006:27; Gaventa 1980:1). Hidden power is exercised by powerful people who are behind the scenes yet they set the political agenda and pull the strings on what and who actually gets to
13 the decision-making table (Gaventa 2006:27). Invisible power is the most subtle yet menacing in that it shapes the mentality, beliefs and attitudes of different players hence setting boundaries of participation (Gaventa 2006:27).
These dynamics are exercised within a deeply gendered and patriarchal society with unequal power relations between men and women. Majority of women, due to their marginalised status, have less power than men hence they are viewed as―the other‖ in most spaces available for participation. The suppression of women and their voices in the private sphere is replicated in the public sphere as men exercise a continuum of power ―over‖ women conceived in the private and transcending into the public arena.
In the public sphere, power over women has been exemplified by closing certain spaces for women‘s participation. These closed spaces have more often than not included spaces at the decision-making table where women would have an opportunity to effect transformative change to their lived realities, those of their families and communities. The kind of transformative change that women would experience if their participation was full, active and meaningful includes overturning gender roles, stereotypes and redressing their marginalized status in social, economic and political arenas.
The spaces for women‘s participation in truth commissions have been characterised as invited spaces where women engaged under terms and conditions that favoured a patriarchal ordering of law and society. The truth commissions, as if justifying women‘s presence, employed liberal approaches in interpreting their legal mandates to limitedly capture women‘s experiences. The end product of such truth telling processes is disparate accounts of the impact of authoritarian regimes on women and men. This approach further causes an inarticulation of women‘s priority concerns within reparative frameworks. Due to male- centred, established patterns by previous truth commissions, there was a great probability that the Kenya TJRC would replicate similar omissions and commissions. The study hence
14 provides an opportunity to investigate the theme of power within the invited spaces of participation in the TJRC.
1.4 Statement of the Problem.
Murungi (2004: 38) contends that discrimination and violence against women is a reality that has characterized the Kenyan society in both public and private spheres. Culture, religion and patriarchal attitudes are used as excuses to relegate women‘s concerns as matters not requiring national attention. Consequently, women, despite comprising the majority of Kenyan population, continue to be traumatized by the violence and suffer the effects of marginalization and exclusion. Formal peace processes like truth commissions that are established in post-conflict societies such as Kenya are opportunities to bring positive changes to the status of women (Bouta et al 2005: 57). The key development challenge in many post- conflict societies that chose to establish a truth commission is to use the momentum to focus adequate attention on gender-equality issues and to increase the involvement of women in these peace processes.
Kenya‘s road map to truth and reconciliation has been male dominated due to inadequate laws that fail to provide an enabling framework for women‘s participation. During the hearings of the Task Force for the Establishment of a TJRC for Kenya, women‘s participation was low.
Both Murungi and Ojiambo (2004) admit that in as much as women were affected by the state of bad governance and human rights violations being inquired into by the Task Force, women‘s exclusion was illuminated by the presence of mainly male participants in the meetings of both panellists and survivors. With the recommendations of the Task Force arising from an undemocratic process, it was crucial to investigate whether laws and policies establishing the actual TJRC would improve for women‘s participation.
15 1.5 Main Goal and Objectives of the Research
The present research investigated an unfolding phenomenon. The overall goal of the research is:
• To uncover the complexities in achieving full and meaningful participation of women
in truth, justice and reconciliation commission processes that transform the lived
realities of women in post-conflict societies.
From this overarching goal, the following specific objectives were formulated:
1. To critically analyze the adequacy of existing international and domestic laws and
policies in Kenya in ensuring women‘s participation and involvement in peace process
through the Truth, Justice and Reconciliation Commission.
2. To investigate power dynamics and the extent to which women in Mombasa are
involved in the Truth, Justice and Reconciliation Commission and other local peace
and reconciliation process at all levels following the 2007/2008 post-election violence.
3. To monitor the level of compliance of national legislation, policies and programmes to
international human rights instruments and standards aimed at engendering peace,
reconciliation and reparation processes.
4. To unearth the needs, concerns and expectations of victims of the post-election
violence, and women generally, for sustainable peace and reconciliation vis a‘ vis the
legal mandate of the Truth, Justice and Reconciliation Commission.
1.6 Assumptions and Research Questions.
The assumptions were dynamic from the point of research design to the conclusion of fieldwork. Some research assumptions and questions were disproved with data from the ground. For instance, one assumption was that majority of women would recommend land reparations for sustainable peace to be achieved. I found that women recommended mainly
16 service oriented reparations that would benefit their families e.g. free education for their children, drug rehabilitation etc. The research assumptions that finally evolvedare as follows:
1. International human rights laws, domestic laws and policies are inadequately articulated to
ensure women‘s involvement and participation in the peace and reconciliation process
through the Truth, Justice and Reconciliation Commission at both national and grassroots
levels.
2. Most women in Mombasa are not involved in the peace and reconciliation process at all
levels due to the influence of normative systems such as cultural discrimination ethnic
differences, economic disempowerment and patriarchal views on the role they play in
public life.
3. The extent to which women are given an opportunity to meaningfully participate is
dependent on visible power, hidden power and invisible power exerted by actors within
and without the TJRC.
4. Women in Mombasa have immense expectations on the outcome of the Truth, Justice and
Reconciliation Commission process, which have not been captured by its legally defined
mandate.
5. Women driven reparations for true reconciliation have not been advanced by the State and
relevant Government peace structures.
6. The Kenyan legal and policy frameworks for peace, reconciliation and reparation fall
short of international human rights standards which require engendering peace processes
and participation of women at all levels of decision-making.
The research questions were as follows:
1) Are international human rights laws, domestic laws and policies inadequate to ensure
women‘s involvement and participation in the peace and reconciliation process
17 through the Truth, Justice and Reconciliation Commission at both national and
grassroots levels?
2) Are most women in Mombasa not involved in the peace and reconciliation process at
all levels due to the influence of normative systems such as cultural discrimination,
ethnic differences, economic disempowerment and patriarchal views on the role they
play in public life?
3) Is the extent to which women are given an opportunity to meaningfully participate
dependent on visible power, hidden power and invisible power exerted by actors
within and without institutions such as the TJRC?
4) Do women in Mombasa have immense expectations on the outcome of the Truth,
Justice and Reconciliation Commission process which have not been captured by its
legally defined mandate?
5) Have women driven reparations for true reconciliation been advanced by the State and
relevant Government peace structures?
6) Do the Kenyan legal and policy frameworks for peace, reconciliation and reparation
fall short of international human rights standards which require engendering peace
processes and participation of women at all levels of decision-making?
1.7 Conclusion.
In conclusion, the international and regional instruments provide a legal basis to advocate for women‘s participation in truth commissions. These truth and reconciliation commissions are themselves creatures of law. However, these laws are either inadequately or limitedly constructed to eventually reflect the experiences of women. The study interrogates these themes with a view to better understand the complexities in ensuring women‘s participation in truth-telling processes.
18 CHAPTER TWO: THE THEORETICAL UNDERPINNINGS OF THE STUDY
2.0 INTRODUCTION
The chapter discusses the theories underpinning the study. It focuses on the theories of power and participation that play a central role in the analysis of the findings of the study. The
Chapter draws on the literature of Gaventa, Lukes and Cornwall who so aptly analyse the power plays that exist in spaces of participation and the different degrees of participation and what it means to women‘s participation. The Chapter then reviews feminist legal theory The
Chapter critically examines how these theories coalesce forming the conceptual framework of the study.
2.1 Theories of Power
The present study interrogates power manifested within the invited spaces of the TJRC. To analyse the power relations within the structures involved in the study, Steven Lukes‘ three dimensions of power theory and John Gaventa‘s power cube theory were used. The theories of power were essential to uncover the extent to which women are given an opportunity to meaningfully participate owing to visible power, hidden power and invisible power exerted by actors within and without the TJRC.
The concept of ―power‖ is complex and contested in social science disciplines. The meaning of ―power‖ is as diverse as it is contentious. First, power is seen as being held by actors-some who are powerful and others are powerless. Second, others see power as pervasive and exemplified in relationships, behaviour, social norms and discourses that affect everyone but which no single actor holds. Third, power is seen as a zero-sum concept whereby gaining power for one means others must give up power. Since the powerful rarely give up power, handing over power often involves conflict and struggle. Fourth, power is viewed as fluid and
19 accumulative; as an infinite resource that can be used, shared or created by actors and their networks in many ways. Fifth, power is seen as a negative trait i.e. those holding power exercise control over others. Last, others see power as capacity and agency that can be wielded for positive action.19
2.1.1 The Forms of Power
Steven Lukes theorises on a four-fold typology of power referring to ―power over‖, ―power to‖, ―power with‖ and ―power within‖. ―Power over‖ is negative power displayed by use of coercion. The other three forms of power are positive power.20 The present study analyses the findings on women‘s participation from the perspective of these four forms of power.
Firstly, ―power over‖ concerns the ability of powerful forces to secure compliance by less powerful people. It is located within institutions such as government or large corporations and within social divisions and inequalities e.g. gender, class, age, race etc. One feature of ―power over‖ is that it is finite and power struggles involve empowerment for some people at the expense of disempowerment for others. The form ―power over‖ is viewed as a win-lose situation involving one person taking power from someone else and using it to dominate, repress, coerce and abuse others. When people are denied access to resources such as land, employment, health, ―power over‖ perpetuates inequality, injustice and poverty. The pattern is replicated in the private sphere through personal relationships. The pattern of ―power over‖ is also repeated when the marginalised or powerless group gains power through leadership positions; they emulate the oppressor by denying opportunities to the powerless groups. To break the cycle, new forms of leadership and decision-making must be expressly defined, communicated and rewarded so as to promote democratic forms of power. ―Power over‖ women by the TJRC was exhibited in the civic education drives. Women had no power,
19See www.powercube.net (accessed on 23-10-13) 20Lukes‘ also added the form of ―beneficent power‖ whereby the government exercises its authority and power to protect and promote the human rights of all (Crawford and Andreassen 2013:6).
20 mandate or authority to determine the agenda of these spaces, the information to be shared and the timeliness of the civic education drives.The power over perpetuated women‘s powerlessness and inability to steer the agenda of the civic education drives to focus on their priority areas.
Secondly, ―power to‖ is described by Lukes as being about agency, empowerment and capacity. It is generative and infinitely expandable resource (Rowlands 1998:13). ―Power to‖ refers to the unique potential of every person to shape their own lives and the world. ―Power to‖ focuses on expansion of the capabilities of the poor and marginalised. It opens up opportunities of joint action or ―power with‖ where it is based on mutual support. Citizen education and advocacy efforts are based on the belief that every person has ―power to‖ bring change. However it does not place emphasis on the existing conflict of interest or resistance to change by power-holders. For instance ―power to‖ was depicted when women approached the
TJRC as participants in its processes so as to seek redress for the violations that they had experienced. The public hearings of the TJRC provided women through their testimonies with an opportunity to shape their own lives and the future of Kenya.
Thirdly, ―power with‖ is generative power. It is collaborative power that is produced through social mobilization and building of alliances through social movements. ―Power with‖ requires finding commonalities and building on collective strength. It concerns building capacity through agency. Like ―power to‖ is entails the process of empowerment. Advocacy groups will seek to build coalitions and alliances. The women‘s only hearings of the TJRC, which are analysed in greater detail in the Findings Chapter, were a platform for women to generate ―power with‖ one another upon the revelation of commonalities in their lived realities. In the same vein, political transitions that are people driven reflect ―power with‖ and
―power to‖ the collective action. The bottom up approach to political transition is more effective as reforms originate from the ground hence difficult to undo (Wanyande 2004:191).
Such reforms are in the control of pro-democracy groups.
21 Fourthly, ―power within‖ is generative power from within an individual. It has to do with agency that is the ability to act and change the world. It involves the development of an individual‘s sense of self-respect, self-worth and esteem. ―Power within‖ increases an individual‘s potential to act upon the world. This form of power involves the process of empowerment.
2.1.2 The Dimensions of Power
Lukes also developed the three dimensions (or faces) of power model that consist of visible power, hidden power and invisible power. These are the dimensions of ―power over‖ also referred to as negative power involving authority and coercion. The first dimension of visible power is associated with the work of Robert Dahl (1957). Visible power is where person A has power over B to the point that s/he can get B to do something that B would not otherwise do (Lukes 2005:16). Visible power applies to political decision-making where there is an actual, observable conflict of interest, a difference in policy preference or difference in social class interests.
The second dimension of hidden power is associated with the work of Bachrach and Barataz
(1970). Hidden power extends the scope of power to control over the agenda of political decision-making e.g. power to determine which issues can be discussed and which issues are to be excluded as being detrimental to interest of the powerful (Lukes 2005:22).
The third dimension is referred to as invisible/internalised power. It is a radical view of power. Power relations are not just about individual acts but collective actions associated with social forces. Power can operate to shape, influence and control people‘s desires and beliefs contrary to their interests e.g. control of information through the media or socialisation (Lukes
2005:27). The notion of invisible power partly has roots in Marxist thinking about the ―power of ideology, values and beliefs in reproducing class relations and concealing contradictions‖
(Heywood 1994:100). The Marxist ideology was that economic exploitation was not the only
22 factor underlying capitalism but that the system was also reinforced by the dominance of the ideas and values of the ruling class. Gaventa argues that invisible power is a form of power in which ―conflict is more invisible through internalisation of powerlessness or through dominating ideologies, values and forms of behaviour‖ (Gaventa 2006). Invisible power is not limited to intentional acts of the powerful to control the thoughts of the powerless; it is seen as a self-reproducing social process in which the thinking and behaviour of both the powerful and powerless are conditioned by pervasive norms.21
The three dimensions of power i.e. visible power, hidden power and invisible power are very interrelated. For example, Gaventa argues that successes of the powerful in public arena
(visible power) shape the obstacles that keep the less powerful from engaging (hidden power).
With time, the lack of visible struggle for power or conflict then leads to an acceptance of the status quo as being the norm (invisible power) (Gaventa 1980: 1). The strategies for change cumulatively must also address the three dimensions of power.
The political transition of Kenya exemplifies the different forms of power. I refer to
Wanyande‘s school of thought on the top down approach to political transitions to democracy in Africa (Wanyande 2004:190). In this case, the changes are instituted and controlled by the incumbent political party and its leaders to the detriment of the less powerful. Also, the leaders can choose to undo the changes they have made when they are not committed to democratic change. Top down transitions have limited success as political leaders tend to only allow reforms that will not undermine their capacity to hold on to power. Wanyande describes this approach of political transition as being ―characterised by piecemeal changes with a focus on ―safe areas‖. This top down approach illustrates hidden power in that the political elite influence the reform agenda behind the scenes to what best suits them. Hidden power is manifested by deliberately under-funding transitional justice actors(Wanyande 2004:190).
21Hayward reiterates that the actions of the powerful just as the powerless are socially constructed (Hayward 1998:14). Hence the powerful may not act on the basis of free and conscious choice to dominate the powerless.
23 Decalo and Martin assert that although the top down approach to political transition is appealing to the ruling elite, it does not reflect the aspirations of the majority of the population
(Decalo 1992:27-28; Martin 1993:6). The top down approach to political transition has happened in Kenya throughout its post-colonial period.22The ruling elite exerts visible power by deliberately failing to enact laws that would effectively end impunity and bring justice to victims of political violence. Where laws on transitional justice mechanisms are enacted, they are limited in scope of in so far as the laws on amnesty, reparations and violations are concerned. Additionally, the ruling elite wield hidden power by creating a difficult environment for operation of transitional institutions e.g. insufficient funds, legal barriers etc.
The unique Kenyan situation has rendered ―transitional justice‖ slow, processes ineffective and un-influential rather than transformational.In all these instances, the governments of the day directed and controlled the reform agenda visibly or behind the scenes by determining its pace, areas of focus, players and rules governing the reform process (Wanyande 2004:190).
Critics of this power theory argue that having three dimensions of power is impractical because ultimately power is assumed to be held by actors. Hayward proposes ―de-facing power‖ as power transcends the dimensions. She argues that there should be critical examination of unquestioned social norms that underlie possibilities for action rather than the actors themselves. Drawing on Foucault‘s theory of power, for Hayward, ―power‘s mechanisms are best conceived, not as instruments powerful agents use to prevent the powerless from acting freely, but rather as social boundaries that, together, define fields of action for all actors. Additionally, Hayward argues that rather than focusing on who has or does not have power, theorists should focus on ―whether the social boundaries defining key practices and institutions produce entrenched differences in the field of what is possible‖
(Hayward 1998:20). She challenges the three dimensions of power that are limited to exchange between two actors or groups (Hayward 1998:16). She embraces agency as a tool to
22 The political transitions include 1992 when multiparty politics was introduced, in the presidential succession from the Moi to the Kibaki regime in 2002 and finally following the 2007-2008 post-election violence. 24 challenge power. Like Foucault, she is cautious about drawing a line between agency and structures as they are both conditioned by socialized norms, identities and knowledge.
For Foucault, domination is only one form of power relation and it occurs within the broader context of power‘s pervasive characteristic (Hayward 1998:21). Foucault argues that power is everywhere and exemplified in discourse, knowledge and ―regimes of truth‖. He asserts that power is what makes us what we are. Foucault dispels the notion that power is exerted by people or groups through acts of domination or coercion. He argues that power is everywhere and comes from everywhere; it is neither an agency nor a structure (Foucault 1998:63). Power transcends politics; it is an everyday, socialised and embodied phenomenon. Foucault views power as a potentially positive force and passionately urges that ―we must cease once and for all to describe the effects of power in negative terms: it excludes, it represses, it censors, it abstracts, it masks, it conceals. Foucault‘s theory was observable during the field study whereby power was manifested in simple things like the sitting arrangement of women participants, criteria for selection of witnesses andthe program of TJRC meetings.Power was evident everywhere and in everything.
Finally, Bourdieu sees power as culturally and symbolically created. He views power as being constantly re-legitimised through interplay of agency and structure. He refers to ―habitus‖ i.e. the socialised norms or tendencies that guide conduct and thinking. According to Bourdieu, habitus is the way society becomes integrated in people‘s lives ―in the form of dispositions or trained capacities and structured propensities to think, feel and act in determinant ways which then guide them‖ (Wacquant 2005:316 cited in Navarro 2006:16). Bourdieu argues that habitus is created through a social process not an individual process. Habitus is made up of
―dispositions that are both shaped by past events and structures, and that shape current practices and structures and also that condition our perceptions of these‖ (Bourdieu
1984:170). Habitus creates patterns of social conduct that can either be transferred from one
25 context to another or shift in relation to specific contexts.23
According to literature by the Institute of Development Studies, these dimensions of power are not only manifested in formal, political decision-making arenas but also may be found within spaces of participation such as public consultations, public hearings, community meetings etc. The present study hence analyses the dimensions of power within spaces of participation of the TJRC i.e. statement taking, public hearings and reparations framework.
The study found that even with state law that seeks to promote women‘s participation,
―habitus‖ shapes institutions and actors to conduct themselves in a manner that still relegates women‘s involvement in the TJRC. This pattern occurs unconsciously ―without any deliberate pursuit of coherence and without any conscious concentration‖ (Bourdieu 1984:170).
2.1.3 The Spaces of Power
The power cube refers to three kinds of spaces for participation namely invited spaces, closed spaces and claimed spaces. These spaces for political participation have been expounded by
Andrea Cornwall and John Gaventa. Firstly, closed spaces are those where decisions are taken behind closed doors. They mainly involve elite actors such as government members, bureaucrats, and high ranking members of the military or ruling political parties or the economic class elites. Civic actors may attempt to counter power in such spaces by opening wide such closed doors so that decision making is subject to wider public influence, targeting political representatives and holding them accountable. Closed spaces were evident in the
TJRC processes in so far as witness selection was concerned especially in the individual and thematic public hearings. The decisions concerning which individual would make it to the witness list was taken behind closed doors with the Directors/Managers of specific departments within the TJRC.
23 Habitus is not permanent; it can be changed under unexpected situations or over long period of time (Navarro 2006:16). 26 Secondly, invited spaces comprise selected actors from the civil society or private sector being invited to participate in policy-making or decision-making processes by various authorities. Participation may be limited to one-off consultation or institutionalised and ongoing. One off encounters for participation means different kind of participants, different dynamics and intended effects of participation. Cornwall adds that in these invited spaces people are invited to participate as citizens, users and or beneficiaries (Cornwall 2002:17).
There can be manifestations of ―power over‖ or ―visible power‖ in invited spaces. Visible power may be depicted in issues of inclusion and exclusion and power dynamics within invited spaces themselves (Gaventa 2006:27). Agency would involve the invitees advocating for particular interests and attempting to exert influence on decision-making or policy-making processes.
Invited spaces are made available by the powerful; they may permit only limited citizen influence, colonise interaction and shift dissent (Cornwall 2002:8). The spaces for participation within the TJRC were mainly invited with the Commission permitting only specific individuals that met its criteria to potentially influence its processes. Cornwall warned that there is the danger that invited spaces created to augment the voices of the marginalised may end up being filled by gatekeepers who speak for but not with those who they represent
(Cornwall 2002:8). The current study confirmed this position when it noted that in an attempt to hear the voices of the victims of gross human rights violations in the Coast region, the
TJRC instead heard from ―gatekeepers‖ some of whom were indeed themselves victims but who did not speak for the victims whom they purported to represent.
Lastly, claimed or created spaces are those that are demanded by the less powerful actors from or against power holders. These spaces can also be those that are created autonomously by less powerful actors against power holders (Gaventa 2006:27). Activities in claimed and created spaces result from ―power with‖ and ―power to‖ i.e. social mobilization and alliance building among likeminded people who create an autonomous space for interaction. Cornwall
27 argues that those excluded from invited and closed spaces would normally find a voice and place to defend interests by creating their own space (Cornwall 2002:17). These created spaces are constituted by participants themselves rather than created for participation of others. Cornwall describes these created spaces as ―sites of radical possibility‖ (Cornwall
2002:17). In the course of the study, it was observed that some members of the public created or claimed spaces for participation when they were denied an opportunity to share their testimonies in the public individual hearings. These individuals demonstrated against decisions to exclude them from the witnesses‘ list hence claiming their space to defend their interests. It is interesting to note that many women who were denied an opportunity to participate in the public hearings did not create or claim spaces for participation but rather accepted the decision by the TJRC.
Finally, Cornwall conceives the spaces for regularised relations. In these spaces, citizens become part of machinery of government. Institutions are either created by state actors assuming the functions of state (Cornwall 2002:18). If not of the state, these spaces for participation are often for the State; aimed at enhancing the state‘s performance whether in accountability and responsiveness, equity and democracy. These spaces are bound; only certain members of the public are able to participate. In a sense, they form a special class of the invited spaces. Their purposes and mandate tend to be circumscribed by agendas of implementing agencies and are rarely if ever open to negotiations by citizens who are invited to take part in them.
2.1.4 The Levels of Power
The power cube refers to three levels or places i.e. local, national and international or global.
The local and global levels have become increasingly important due to decentralisation and globalisation respectively. The limitation of the power cube lies in its exclusion of the family
(or home) as a level at which power operates. According to Crawford and Andreassen, power
28 relations in the public sphere cannot be analysed in exclusion of the private sphere (Crawford and Andreassen 2013:12). The gender relations of domination within the home or private sphere may be an obstacle to women‘s participation in the public sphere. Furthermore, the domination of women in the private sphere is mostly replicated in public sphere.
Closed Invited Claimed/Created
SPACES
Diagram 1: The Power Cube
The dynamics of power are dependent on the type of space within which it is found and the level at which it operates (Gaventa 2006:30). As depicted in the above illustration of the power cube, power consists of the different forms namely visible, hidden and invisible. Either of these forms of power is manifested within different spaces of participation namely closed, invited and claimed spaces which may be at three levels namely local, national and global. In this study, power is analysed at local, national level and family levels. The family is incorporated to analyse power relations within family and its impact on women‘s participation in the TJRC.
A feminist legal perspective was employed to conceptualise power over as male power over
29 women. MacKinnon describes male power as omnipotent; she argues that very few, if any, aspects of life are free of male power. Consequently, women have no consciousness other than that which male power allows them to acquire. Also, women‘s actions are taken to serve male interest. MacKinnon argues that the woman who was free from male power was the pre- cultural natural woman in the pre-Oedipal stage that is before she enters the patriarchal culture (Smart 1989:78).
2.2 Feminist Legal Theory.
The present study draws from feminist legal theory to critically analyse the additive approach of legal frameworks of truth commissions. This analysis is founded on the research question dealing with the adequacy of law in ensuring women‘s participation in the TJRC. A feminist analysis undoubtedly must refer to the contested concepts of ―sex‖ and ―gender‖. Sex is based on physical distinctions between females and males whereas gender is a social and cultural construct (Bentzon et al 1998:82). Male and female roles and relations are socially and not biologically constructed. Gender entails, on one hand, men‘s and women‘s active roles in society and on the other hand, ingrained social ideas about femininity and masculinity.
Therefore, a feminist critique presumes subordination of the woman/female/femininity with respect to the man/male/masculinity. It opposes this subordination and seeks equality between the two sexes in the social, political, economic and cultural spheres.
Using Smart‘s argument, the study conceptualises the difficulties in pushing forward feminist concerns through the law that establishes the TJRC and its mandate. For a long time, feminists have argued that it is imperative to do more than just add women into existing frameworks of knowledge and research (Smith 1974 cited in Smart 1989:1). Smart argues that in the fields of law and social sciences it has been more difficult to move from speaking ―on women and‖ to engendering these areas. For instance there are books on women and law, or chapters on women in the TJRC final report because without these initiatives ―on women and…‖ women and the issue of gender would be invisible. 30 2.2.1 The Power of Law
The power of law originates from the definition of law as a unitary field of knowledge (Smart
1989:4). The power of law is also in its ability to define other discourses conferring importance on its own definition than those of others. However, Smart dispels this notion and asserts that the law is not as unified as it purports to be; the law is in fact ―a plurality of conflicting principles having contradictory effects at every level‖ (Smart 1989:4). The law hence becomes deficient in achieving gender equality in women‘s participation in truth commissions.
In many jurisdictions that adopted a truth commission as a transitional justice mechanism, the law has been applied unconsciously to reinforce gender discrimination and inequalities rather than provide redress for harms that women faced under repression or violent conflict. The resistance to feminist knowledge by the law is founded on the commonality between law and phallocentric culture. Phallocentric culture is designed to meet the needs of the masculine imperative; in other words, it refers to the placing of positive values on masculine things or the manner in which gendered values dominate (Smart 1989:27). The phallocentric has been widely explored by the feminist psychoanalytical work that elaborates on the Oedipal phase to understand the process by which women enter into the male, Symbolic Order. Duchen states,
Women are said by some to be excluded from the Symbolic and live in a world that is, at a most fundamental level, not theirs. Others have given a different attention to the Symbolic, starting from the observation that the Symbolic Order, founded on the Father‘s Law, is thus always patriarchal, and, working at the level of the unconscious as it does, bring the little girl into unconscious structures that are always masculine, and repress her (and his) femininity, which never is, and never can be, expressed (Duchen 1986:79). The feminist psychoanalytic school on women‘s status in the Symbolic Order explains women‘s limited participation in the TJRC. Essentially, the TJRC is established in the public sphere, also the Symbolic Order that is male in character. Consequently, by its very nature, constitutive law and structure, the TJRC excludes women. The TJRC, as discussed in the
31 findings chapter, adds women to its existing framework. The adding of women is depicted through the establishment of a ―special unit‖ to deal with women, the women‘s only hearings, the conscious recruitment of women Commissioners, staff and statement takers and the chapter ―on women‖ among others. Therefore to ―incorporate‖ women in the male domain, the TJRC can only speak ―on women‖ rather than tell the story of Kenya from women‘s world view. These initiatives are merely ―deliberate attempts‖ to justify women‘s presence in a
Symbolic Order that is founded on the Father‘s law.
2.2.2 Using the Law to Spearhead Feminist Interest: A Mirage or a Reality?
Smart faults modern liberal feminists for thinking that the law can be a useful tool for emancipation of women. She affirms that the first wave liberal feminists used the concept of equal rights to fight against legally imposed barriers. At this time, the law openly distributed privileges and power to men to the exclusion of women. These nineteenth century liberal feminists agitated for the removal of male, legal privileges. Once the law ceased to allocate rights to men alone, advocating for legal rights in the present day to remove other forms of discrimination is an illusion. The radical feminists acknowledge that the law can only assist women to the extent to which it reflects the interest of patriarchy or men. Edwards argues that international human rights are ―male rights‖ which privilege men and sideline or silence women‘s interests (Edwards 2008:9). The legal system is hence systematically gendered to prioritise male interests over female interests. With truth commissions established through law, the categorization of violations deemed to be appropriately handled by such commissions tend to capture male interests, experiences and needs. Women become the exception to this general rule requiring a deliberate departure from the male standard to encapsulate female experiences, needs and interests. Due to the complexities of these contestations in law, not all government institutions and or agencies take and or are conscious of the need for this deviation.
Additionally, day-to-day experiences are of little interest to the law especially in terms of their
32 meaning to individual people. These experiences only become relevant when translated into the language of law that can be processed through the legal system (Cain 1979 cited in Smart
1989:11). Most women relate on the basis of their everyday experiences and lived realities; the language of law and its processes are abstract and technical rendering women incapable of translating these experiences into a medium that can be processed by the law. Consequently, women‘s day-to-day experiences become irrelevant to the law. Smart further argues that when legal process translates day-to-day experiences into legal relevancies, a great deal of what might be relevant to the parties is excluded. The TJRC process depicts Smart‘s theory on the law. The enabling law of the TJRC was liberally interpreted to render women‘s testimonies before the TJRC legally relevant. Women‘s every day experiences were translated into the language of law and labelled as forms of systematic discrimination against women. The TJRC in its recommendations on how to improve women‘s status, proposed legal reforms which would definitely be inadequate to transform women‘s day to day experiences for the better.
Consequently, the parties are not always silenced but they can only speak in a certain manner so that their experiences are converted into something that law can process. This demonstrates the power of law to disqualify any alternative accounts.
In contributing towards feminist jurisprudence, Gilligan builds a feminist psychological theory of the development of moral and ethical values in women. Drawing from Freud‘s stated position (as influenced by Plato before him), she suggests that women have a lesser moral sense than men. Freud articulates:
I cannot evade the notion (though I hesitate to give it expression) that for women the level of what is ethically normal is different from what it is in men. Their super-ego is never so inexorable, so impersonal, so independent of its emotional origins as we require it to be in men… they show less sense of justice than men,…they are less ready to submit to the great exigencies of life,… they are more often influenced in their judgements by feelings of affection or hostility… (Freud 1977:342). Freud‘s views definitely refer to the constructions of masculinity and femininity, which are not the same as biological male and female. Freud interchangeably refers to ―women‖ rather
33 than ―femininity‖. Gilligan analyses the manner in which Freud‘s views are taken as the truth about women in psychological research. She theorises that the masculine mode that is considered as ―inexorable, unemotional, impersonal and objective‖ coincides with the cultural expectations of justice and sound moral judgment (Smart 1989:73). The masculine mode then is translated into the legal system and is taken as ―justice‖. On the other hand, the feminine mode that is based on care and maintenance of relationships is repressed, undervalued and considered unsound in moral judgment. Gilligan argues that ―the different voice of women‘s experience and judgment should not be dismissed but heard alongside the male voice‖ (Smart
1989:74). She critiques the justice system that entrenches the masculine mode. Gilligan describes such a justice system as ―unjust in its treatment of women.‖ She proposes a
―generative view of human life‖ where the ethic of justice that represents equal treatment for all is added to the ethic of caring that embodies no one being harmed by the system (Smart
1989:74 citing Gilligan 1982). Smart finds Gilligan‘s proposal inadequate. She notes that a majority of legal systems fuse the ethic of caring and the ethic of justice and yet there is still no justice for women. Smart argues that Gilligan‘s emphasis on the feminine solidifies differences and tilts the unequal power balance in favour of the masculine. In the same vein,
Weedon contends that,
The radical-feminist project is not to deconstruct the discursive processes whereby certain qualities come to be defined as feminine and others as masculine nor to challenge directly the power relations which these differences guarantee. It is rather to revalue the feminine which patriarchy devalues as an alternative basis for social organization in separation from men (Weedon 1987:81). In critiquing Gilligan, MacKinnon argues that the theory accepts values used by male supremacists for their own benefit as women‘s values. MacKinnnon contends that women‘s affirmation of difference when it means dominance translates to affirming qualities of powerlessness. She states that how women view ―morality‖ is not morality in a different voice but rather morality in a feminine voice (MacKinnon 1987:38, 39).
The present study embraces the theories espoused by Gilligan and MacKinnon to describe the
34 place of women in the TJRC process in Kenya and recommend appropriate action to improve women‘s status in similar processes. Gilligan‘s theory of the masculine mode of justice and the feminine mode of justice is useful in interrogating the form of justice provided by the
TJRC. The TJRC being an extra-legal actor that aims at promoting reconciliation seems to coincide with the feminine mode of justice that is based on maintaining relationships and networks. Indeed the TJRC‘s mandate as per the Truth, Justice and Reconciliation Act was to promote national healing, cohesion and restorative justice. Thus, the objectives as stipulated in law can be described as feminine mode of justice.
Despite the TJRC being legally construed from the premise of feminine mode of justice, the participation of women within its processes was not guaranteed. The TJRC had to put in place extra-legal mechanisms to notably increase women‘s participation e.g. special hearings for women. The processes of statement taking, public hearing and final report took place within a patriarchal terrain that inevitably excluded women. As a result, women were largely limited to participating whenever and wherever deliberate mechanisms to include them were in place.
2.2.2 A Feminist Analysis of the Concept of the State in Transitional Justice Contexts
The second issue that poses challenges towards women‘s full participation in transitional justice mechanisms like the TJRC relates to the concept of the state. The TJRC in Kenya is a creature of the state. The state and participation in its activities is viewed as a male affair.
MacKinnon asserts that ―the state is male in the feminist sense. The law sees and treats women the way men see and treat women‖ (MacKinnon 1983:644). MacKinnon further argues:
When [the state] is most ruthlessly neutral, it will be most male; when it is most sex blind, it will be most blind to the sex of the standard being applied…Once masculinity appears as a specific position, not just the way things are, its judgments will be revealed in process and procedure, as well as adjudication and legislation… However autonomous of class the liberal state may appear, it is not autonomous of sex.
35 So what MacKinnon and Smart assert is that there is no neutral terrain. MacKinnon states that there is no difference between the law, state and society. All three concepts are interchangeable and manifestations of power (Smart 1989:81).Nonetheless, Smart contends that the law is exceptionally powerful and oppressive of women. She argues that the law is powerful in silencing alternative discourses for women but at the same time far less powerful in transforming society to meet the needs of all women (Smart 1989:81).
Edwards states that the public/private dichotomy is the source for women‘s exclusion within both national and international law (Edwards 2008: 10). The law privileges the public sphere over the private sphere. State responsibility for human rights abuses is hence restricted to those abuses that occur within the public sphere. Yet violations that mainly affect women‘s lives occur within the private sphere. In fact, women are specifically localised within the private sphere, which is ignored and marginalised by law to the detriment of women.
Pateman‘s theory also explains the impact that women‘s roles within the private sphere has on participation in a public sphere processes such as the TJRC. It was found that gender roles, which are traditionally exercised by women in the private sphere, had a significant impact on whether or not they would participate in the TJRC. For instance, women traditionally bear the responsibility of caring and nurturing children and taking charge of household chores. They hence were incapable of participating in hearings of the TJRC that took place during the time that they would be doing household chores or taking a sick child to hospital. Additionally, women would be restrained from participating in TJRC processes that took place in areas far away from their homesteads. Patriarchy manifested itself in the public sphere when transitional justice actors failed to adequately respond to women‘s gender roles and organise gender sensitive public hearings. For instance the public individual hearings typically began at
09h00 ending at 18h00. These are crucial timings for women to care for children and carry out household chores. Hence participation in the public individual hearings for most women
36 meant making a choice between their families and the TJRC. Obviously, the former always took precedence.
Just like MacKinnon and Smart, Pateman also draws the linkages between the civil state, law and patriarchy. She however argues that the state, law and patriarchy are not forms of power but dimensions in complex multifaceted structure of domination in modern patriarchy.
Modern patriarchy has posed challenges for feminists. Differences between the male and female sex is presented as the classic natural difference. Men‘s patriarchal right over women is presented as reflecting the proper order of nature. Consequently, feminists and state institutions have to constantly justify women‘s presence or involvement in the public, civil sphere that is viewed as masculine domain.
Using Pateman‘s theory of the state, the study unveils strategies within the TJRC that validated women‘s participation and presence rather than eliminated any reference to the difference between women and men in political life e.g. in the laws, policies etc. Pateman states that the fact that women are women is more relevant than the differences between them.
She recommends telling of women‘s stories rather than being preoccupied with mother-right and father-right that only perpetuates patriarchal structures. The present study affirms that despite social changes, legal and political reforms, the question of women‘s subordination is still not seen as a matter of great importance in political practice.
2.3 The Intersectionality Theory
Feminism has been described as being inept of speaking universally for all women due to the unique limitations of gender as a single analytical category (McCall 2005:1771).
Consequently, feminists embraced intersectionality as a central category of analysis to fight feminist hierarchy, hegemony and exclusivity (McCall 2005:1771; Nash 2008:1).
37 The term ―intersectionality‖ was first coined by Crenshaw when the concept emerged in late
1980s and early 1990s from critical race studies. She described intersectionality as underscoring the ―multidimensionality of marginalized subjects‘ lived experiences (Crenshaw
1989:139). McCall defines the term ―intersectionality‖ as ―the relationships among multiple dimensions and modalities of social relations and subject formations‖ (McCall 2005:1771).
Crenshaw explains that ―the concept of intersectionality [is used] to denote the various ways in which race and gender interact to shape the multiple dynamics of black women‘s employment experience‖ (Crenshaw 1991:1244). Additionally, Nash asserts that intersectionality is ―the notion that subjectivity is constituted by mutually reinforcing vectors of race, gender, class and sexuality‖ (Nash 2008:1). Davis defines intersectionality as ―the interaction between gender, race and other categories of difference in individual lives, social practices, institutional arrangements, and cultural ideologies and the outcomes of these interactions in terms of power‖ (Davis 2008:68).
According to Cho et al, an intersectional analysis is inextricably linked to an analysis of power (Cho et al 2013: 797). Cho et al insist that intersectionality is not a closed system but a ―place for open-ended investigations of the overlapping and conflicting dynamics of race, gender, class, sexuality, nation and other inequalities‖ (Cho et al 2013:788). Cho et al describe that what makes an analysis intersectional is not merely the use of the term
―intersectionality‖ but rather is ―the adoption of an intersectional way of thinking about the problem of sameness and difference and its relation to power‖ (Cho et al 2013: 795).
The present study incorporates a power analysis. That notwithstanding, intersectionality as an analytical framework was imperative to interrogate the multiple dimensions of Kenyan women in relation to the power dynamics within spaces of participation. The categories of analysis are not distinct but ―fluid and changing‖ and being created and re-created by power dynamics. The conception of categories hence focuses on what intersectionality does rather than what intersectionality is (Cho et al 2013: 795). Following data analysis, I conceptualised
38 the dimensions of gender, ethnicity, religion, class, political affiliation and age and how they impacted women‘s participation in the TJRC.
The concept of intersectionality was particularly useful for problematising the law‘s purported colour blindness, neutrality and objectivity. Many feminist theorists have rejected the idea of a universal woman without explicitly interrogating the concept of intersectionality. They argue that the ―woman‖ is herself a contested and fractured terrain and her experience is made up of subjects with different interests (Nash 2008:4). Consequently, the present study theorised not only on the differences between men and women in participation within the
TJRC but also on the differences between women as amongst themselves and the woman as within herself. The intersectionality analysis was imperative to reveal the complexities involved in participation of women and representation politics as the title of the thesis suggests.
Diagram 2: Categories of Intersectionality Analysed
39 The intersectionality theory revealed the politics of representation. It was found that women‘s multiple identities hinged on their difference had an impact on representation within the
TJRC. It was found that despite the female presence in the Commission, women at the grassroots represented in focus group discussions, remained cynical that their interests and needs would be addressed. These differences are so real in the lives of women that were interviewed that they impacted on whether women for example from certain social class will perceive themselves as being represented by women from a different social class. The TJR
Act, in requiring representation of women, conceives women as being homogenous. However, in reality, sameness amongst women does not exist in so far as representation is concerned.
Similarly, MacKinnon propagates for the use of intersectionality as a method of legal analysis in cases involving violations to women in minority communities. She views intersectionality as a ―dynamic method of analyzing multiple axes of power and inequality in whatever form, time, place they happen to be manifested‖ (Cho et al 2013: 801). MacKinnon recommends an intersectional analysis as being imperative in grounded research that seeks to link theory and practice. The present study that also employs grounded theory is particularly suited for an intersectional analysis.
On identity politics, Cho et al assert that keenness to identity should also confront power.
Intersectionality can help reveal how power works through these overlapping identity categories. Chun, Lipsitz and Shin state that intersectionality primarily concerns the way things work rather than people are‖ (Chun et al 2013:923). MacKinnon describes identities as ―authentic instruments of inequality…they are static and hard to move‖ (MacKinnon
2013:1023). MacKinnon further adds that identities and stereotypes ―are the ossified outcomes of the dynamic intersection of multiple hierarchies, not the dynamic that creates them. They are there, but they are not the reason they are there.‖ (MacKinnon 2013:1023).
40 Similarly, Spade critiques traditional liberal discourses, which define the problem of discrimination in terms of the state‘s failure to overcome difference. In the same vein,
Spade argues that gender and race neutral legal and administrative systems are not scrutinized hence they reproduce and maintain gender and race categories that then have an impact on life opportunities (Spade 2013:1031). Spade recommends the use of
―intersectionality-informed resistance strategies‖ to reject legal equality and focus on
―dismantling the violent capacities of racialised-gendered systems that operate under the pretense of neutrality‖ (Spade 2013:1033).
2.4 Conclusion
The chapter herein discussed the theoretical underpinnings of the study. The theories of power emphasize that spaces of participation are spaces of power which are manifested in different forms. Gaventa describes power as visible, invisible or hidden. In the same vein,
Lukes argues that visible power is exerted as power over, power with, power to and power within. The spaces for participation are also defined as closed, invited or created/claimed.
In analysing women‘s participation, I will draw on the power theory. Equally, the law will be analysed from a feminist standpoint drawing from the works of MacKinnon, Smart,
Crenshaw among others.
41 CHAPTER THREE: BACKGROUND TO TRANSITIONAL JUSTICE AND TRUTH COMMISSIONS
3.0 INTRODUCTION
This chapter discusses the concept of transitional justice, its definition, origins and critiques.
The chapter then interrogates transitional justice debates from a feminist perspective. It succinctly explains transitional justice mechanisms focusing on truth commissions. Finally, the chapter contextualises transitional justice in Kenya. It highlights the arguments for the
Kenyan truth commission and the dynamics involved in women‘s participation.
3.1 Transitional Justice: Its Origin and Critiques
In the past, human rights violations were not vindicated and states battled with the nature of response for such abuses. Transitional justice cases have been traced back to 404 to 411 BC when Athens was being restored to democracy (Elser 2004:3-23). Contemporary transitional justice debates were greatly influenced by responses to Nazism in the World War II era
(Leebaw 2008:98). It was believed that punishing Nazis for their gross human rights violations was proper and the debates focused around finding proper retribution under international law (Leebaw 2008:99 citing Bass 2000). However, it was only between 1970s and 1990s when the modern concept of transitional justice emerged in Latin America, Central and Eastern Europe, Africa and Asia; these regionswereexperiencing transitions from authoritarian rule (Kamminga et al 2009; Gahima 2013: 3; Task Force Report 2003: 23).
A growing human rights movement resulted in significant pressure to confront past abuses especially through criminal trials. At the time, transitional justice mechanisms were limited in scope and geared mainly towards retribution. As at early 1980s, there were well-established norms in international law that placed obligations on states undergoing transitions from dictatorship to democracy or conflict to peace. Prosecutions were believed to have greater
42 influence in transitional states as many perpetrators in democratising countries were able to negotiate amnesties or compel new regimes to choose other mechanisms such as truth commissions (Gahima 2013:3). Mendez argues that international human rights law recognises that the state has an obligation ―not only to refrain from committing certain acts against the individual but also to carry out duties of an affirmative nature‖ (Mendez 1997:5). He adds that the recognition that some rights are so fundamental that they can never be derogated even in a state of emergency. In brief, states have the following obligations when undergoing political transition:
a) To facilitate truth-telling in order to create an authoritative account of the history of
the conflict and of its attendant human rights violations;
b) To investigate, prosecute and punish those responsible for the violations
c) To offer reparations to the victims
d) To conduct institutional reforms to dismantle extant systems which promote the
perpetration of abuse (Mendez 1997; Gahima 2013: 4).
The challenge in every transitional state is how to manage and finance these transitions. In the context of Argentina‘s 1984 transition and Chile‘s 1991 transition, the new regime battled with the question of whether to punish or to pardon human rights violations that had taken place in the previous regime (Leebaw 2008:99). Argentina‘s attempts to prosecute human rights abuses ended when military protests threatened to destabilise the nation (Leebaw
2008:99 citing Nino 1996). So Argentina and later Chile, were the first to develop truth commissions as alternative forms of accountability to prosecutions (Leebaw 2008:99).
Gahima points out that truth commissions were used as a tactic to evade prosecutions in transitional states. Nonetheless, truth commissions were vested with powers to investigate human rights violations as per internationally agreed legal standards. On the other hand, in
Eastern Europe, laws were passed with the aim of conducting widespread purges in countries such as Albania and Czechoslovakia (Leebaw 2008:99 citing Gonzalez-Enriquez 2001). Truth
43 commissions were adopted to deal with the Soviet era repression (Leebaw 2008:99). In the
1990s, South Africa entered a political compromise, which involved setting up a Truth and
Reconciliation Commission rather than prosecutions in its political transition from apartheid to democracy.
3.1.1 Defining “Transitional Justice”
There is no universally accepted definition of the term ―transitional justice‖. Gahima asserts that transitional justice is an evolving phenomenon (Gahima 2013:2). The term was first coined by Teitel in 1991 and popularised in further publications.24 According to Teitel, transitional justice is ―the conception of justice associated with a period of political change, characterised by legal responses to confront the wrongdoing of repressive predecessor regimes (Teitel 2003:69). Bassiouni equates transitional justice with post-conflict justice
(Bassiouni 2002). However, Gahima refutes this argument stating that transitional justice plays a similarly important role even in situations where violent conflict is ongoing. Roht-
Arriaza defines transitional justice as the ―set of practices, mechanisms, and concerns that are aimed at confronting and dealing with the legacies of past violations of human rights and humanitarian law‖ (Van der Merwe et al 2009: vii). Bell and O‘Rourke describe it as a
―package of measures which societies emerging from violent conflict use to pursue accountability‖ (Bell and O‘Rourke 2007:24). They add that as the phrase ―transitional justice‖ suggests, it is justice with the political purpose of effecting transition and a differentiated form of justice for a peculiar and time limited period (Bell and O‘Rourke
2007:24). Gahima defines it broadly as ―the policies, practices and mechanisms with which societies seek to confront and deal with legacies of past violations of human rights and humanitarian law in the context of political transition with a view to restoring or establishing social cohesion and securing durable peace‖ (Gahima 2013:2). The United Nations issued a
24 Gahima (2013:1) refers to the publication by Kritz (1995) Transitional Justice: How Emerging Democracies Reckon with Former Regimes as having popularised the term ―transitional justice‖ 44 report on transitional justice and rule of law which defined transitional justice as ―the full range of processes and mechanisms associated with a society‘s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation‖ (United Nations Report 2004:4).25 The present thesis draws the meaning of
―transitional justice‖ from the scholarship in the area. It views transitional justice as systems, processes and mechanisms that societies establish to deal with a past of gross human rights violations so as to restore peace, secure justice, democracy, equality and the rule of law.
The question arises then is how does one determine the length of a political transition? Is the cessation of violence enough? What does a state‘s transition constitute? Leebaw in reiterating this question, asserts that many debates imply a ―transition‖ to democracy. Sooka asserts that scholars need to determine whether the end goal of transitional justice is ―positive peace‖ or
―negative peace‖ (Sooka 2010:24). She defines positive peace as lasting solutions that address the root causes of conflict and seek to ensure that the conflict does not recur. The primary objective of positive peace is true democracy. On the other hand, ―negative peace‖ refers to the cessation of violence without addressing the root causes of the violence. It does not provide lasting solutions to ensure that conflict does not recur. Instead negative peace provides an atmosphere wherein there is impending risk for tensions, division and violence to flare up again (Sooka 2010:24). In transitional situations, a new government is faced with tough decisions concerning striking a balance between preventing the recurrence of human rights violations and repairing the damage they have caused, bearing in mind the larger goal of achieving a measure of national unity and reconciliation (Zalaquett 1995:6).
3.1.2 Choosing Transitional Justice Mechanisms for Post-Conflict States
Scholars attempt to devise best practices to develop different approaches to transitional justice. Transitional justice practitioners recommend a holistic transitional package that
25Vandegiste describes ―transitional justice‖ as ―the process through which states and societies deal with a legacy of large-scale human rights abuses in the context of a change of political regime‖ (Vandegiste 2009:22). 45 includes the following: an accountability mechanism in the form of a truth commission, a judicial mechanism for prosecutions, vetting, institutional reform programmes, security sector reform and disarmament, demobilisation and reintegration (Sooka 2010:25). All these mechanisms are to exist side by side (Sooka 2010:25). Sooka refers to a ―tick-box approach‖ whereby transitional states tick off the tools that are being utilised. Nonetheless, she rightly warns against this approach as standardisation of transitional justice processes may result in overlooking the otherwise unique cultural context of each transitional state.
Leebaw asserts that there is a rising recognition that for transitional justice institutions to promote political reconciliation, they must be responsive to the local context, traditions and political dynamics (Leebaw 2008: 116). Sooka reiterates that transitional justice involves political choices by states when confronting human rights violations committed by preceding governments (Sooka 2010:26).Subsequently, transitional justice questions have been described as political rather than technical questions (UN 2004). Hence there can be no hard and fast rules on how these institutions can operate. Transitional justice should vary depending on the context, design and implementation of its mechanisms. Nonetheless, underlying the politics of transitional justice is the question of whether to select tools that are the least divisive means of dealing with the past such as truth commissions or to prosecute perpetrators that may act as deterrence but also possibly promote political strife and instability
(McAdams 1997: xiv).
Comparatively, ―transitional justice‖ ought to be distinguished from ―ordinary justice‖. Teitel notes that law functions uniquely in a context of political transition. She observes that ―in its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order even as it enables transformation‖ (Teitel 2000:6).
Consequently, the transitional phase is an extraordinary phase wherein through mechanisms of transitional justice the law can enable, albeit differently than in times of relative peace,
46 transformation in the policy, legal, political, social and economic order. In challenging this stance, the Secretary-General of the UN once said in a press release:
There are times when we are told that justice must be set aside in the interests of peace. It is true that justice can only be dispensed with when the peaceful order of society is secure. But we have come to understand that the reverse is also true: without justice, there can be no lasting peace (United Nations 2003).26 The question then arises is that whose justice prevails during these ―extraordinary periods of political upheaval‖? Is it the victor‘s justice or victims‘ justice? The kind of justice to be achieved through the transitional phase depends on who conceptualises ―justice‖. The theorists of justice in transitional states are those who design the tools, its scope and mechanisms at the peace table. Inevitably, most women would be excluded from these spaces because such decision-making roles within political processes are viewed as traditionally masculine roles.
3.2 Feminist Critiques of Transitional Justice
There has been visible exclusion of women in transitional justice mainly due to the gender insensitive law under which the mechanisms are formed. In addition, women are mostly absent in fora that determine the nature and design of transitional justice mechanisms. Most women remain missing at the negotiation table that reach peace agreements, which dictate the extent of accountability in moments of political transition. Most negotiation processes have focused on ceasefires followed by complex power divisions between competing groups through the electoral and governmental arrangements and or divisions of territory. For instance the Kenya National Dialogue and Reconciliation Framework, which was the outcome of peace negotiations between Former President Mwai Kibaki‘s Party of National Unity and
Former Prime Minister Raila Odinga‘s Orange Democratic Movement, had four reform agenda for the newly formed coalition government. The important agreements on peace are:
26See Press Release UN Doc SG/SM/8628,L/3027 (11 March 2003) 47 Immediate action to stop the violence and restore fundamental rights and liberties;
Addressing the humanitarian crisis, promoting reconciliation, healing and restoration
of calm;
Overcoming the political crisis; and
Addressing long-term issues and root causes of conflict including constitutional, legal
and institutional reforms.
Of these agreements, none expressly and specifically addressed issues relating to gender discrimination and inequalities. Reform agenda number 4, popularly referred to as ―Agenda
Four‖, spoke to the need of addressing long-term issues and root causes of conflict. If liberally interpreted by the transitional justice institutions, it may include matters that address issues of discrimination, ethnic divides, domination and improvement of physical, social and legal security with regard to gender; however these issues are still to be addressed as secondary to other reform agenda and having been couched as ―long-term solutions‖ may be un-prioritized by the state. Furthermore without an explicit requirement to deal with deeply entrenched gender inequalities, a liberal interpretation of ―long-term solution‖ is left to the discretion of transitional justice institutions.
Women suffer disproportionately from armed conflicts. Since they form half of the population, women are integral to post-conflict reconstruction and reconciliation. Feminists have sought to address women‘s exclusion by seeking reforms to legal standards and the processes of transitional justice (Bell and O‘Rourke 2007:26). These feminist debates around transitional justice have involved ―adding‖ women, ―incorporating‖ their diverse experiences of conflict, human rights violations and post-conflict demands for justice in these transitional justice projects (Bell and O‘Rourke 2007: 33). Some of the advances achieved in involving women in transitional justice mechanisms include prosecutions of sexual violence, incorporation of gender in the mandate of truth commissions amongst others (Campbell
2007:411, 412). For example, in the truth commissions in Guatemala, South Africa and Peru,
48 gender-neutral mandates were interpreted to incorporate sexual violence as a form of torture and ill treatment (Nesiah 2006:1). In truth commissions like Sierra Leone, Haiti and Timor
Leste, gender or sexual violence was expressly incorporated into their mandates (Bell and
O‘Rourke 2007:32; World Bank 2006:ix). As far as prosecutions are concerned, the development of international legal regulation on sexual violence in armed conflict through courts and law has meant increased accountability in gender matters (Campbell 2007: 412,
413). However, these efforts have involved ―accommodating‖ and or ―justifying‖ women in transitional justice mechanisms rather than engendering these mechanisms to respond to the needs of both women and men. Additionally, the legal accountability for non-sexualised violence that women experience during armed conflict remains weak.
3.2.1 Theories of Justice Vis-À-Vis Transitional Justice
Bell and O‘Rourke note that there are three theories of justice that underpin ―transitional justice‖ and they have gender implications (Bell and O‘Rourke 2007:35). First, the theorisation of transitional justice as ordinary justice, where transitional justice is viewed as an imperfect form of ordinary criminal justice.Transitional justice is viewed more as a justice gap rather than a ―transitional‖ form of justice as it is characterised by trade-offs such as truth for amnesty, remorse for punishment and prosecution of the most serious offenders for most serious offences (Bell and O‘Rourke 2007:36; Teitel 2000:6). Under this theory of justice, transitional justice becomes a means of settling for some form of justice rather than none at all. The justice gap is tolerated as a political gap. Premised on this school of thought, transitional justice mechanisms can be critiqued as being fundamentally unjust and partial in that they violate basic notions of justice. This however does not preclude women from identifying a particular violation and pushing for accountability as was in the case of Las
Madres de Plaza de Mayo in Argentina (Bell and O‘Rourke 2007: 36).
49 Second, is the theorisation of transitional justice as liberalizing justice whereby there is an acknowledgement of the partiality of transitional justice mechanisms. However, the partiality of transitional justice is theoretically justified due to the unique nature of the transitional phase and the liberal goals of the transition (Bell and O‘Rourke 2007:37). In other words, transitional justice is viewed as an extraordinary manifestation of criminal justice. This theory is itself critiqued by its proponents who assert that the end goals of liberalisation would normally require that the rule of law of liberalism be satisfied during the transitional period.
Where there is separation of the end goals of liberalism and liberalisation as a process, then the end goals will surely be in doubt. Nonetheless, transitional justice as liberalisation offers opportunities for women‘s inclusion on equal footing with men. Liberal feminists propagate for liberalism to deliver on its promises on equality. Bell and O‘Rourke argue that the achieving justice through liberalisation during transition tends to narrow the conception of crimes under consideration (Bell and O‘Rourke 2007:38). This view-point is particularly limiting as most political conflicts are very complex in nature and especially when analysed from a gender perspective. Narrowing the conception of the crime might then result in failing to address women‘s lived realities in the conflict period. Some of the questions posed about these political conflicts include whether there is one or many conflicts, how public and private conflict intertwine in women‘s lives, silences around sexualised violence during conflict and the gender dimensions in post-war settings (Bell and O‘Rourke 2007:38). Additionally, feminists have criticised liberalism for having established the public and private dichotomy, purported neutrality of the law and the patriarchal nature of the social contract between the state and its citizenry (Pateman 1988). These same challenges are extended to the transitional context whereby once violence against women perpetrated in public sphere during the conflict stage is stopped; there is a continuum of violence for women in the post-conflict setting, which is now perpetrated, in the private sphere.
50 Third, is the theory of transitional justice as restorative justice whereby justice is viewed as restoring broken relationships between individuals, communities and state institutions.
Transitional justice as restorative justice presents truth commissions as alternative forms of accountability capable of giving rise to individual and national reconciliation. These transitional justice mechanisms are described as being ―softer‖ on accountability than courts of law and move beyond the more procedural type of adversarial justice ―towards a complex account of individual, communal and institutional accountability‖ (Bell and O‘Rourke
2007:40). Restorative justice moves beyond the more masculine discourse of crime and punishment towards feminine discourse of the notion of repairing relationships. In addition, restorative justice through truth commissions is more accessible to women due to the flexibility of processes. Truth commissions address the survivors‘ needs for public acknowledgement and other reparative measures. As a result, there is more opportunity for women‘s participation in these transitional justice mechanisms and in turn women can shape their end goals for their own radical transformation. Nevertheless, the processes of truth commissions processes may also be riddled with gender bias as opposed to other more formalised transitional justice mechanisms (Bell and O‘Rourke 2007:41). This study found that where the rules of engagement in truth commissions were inflexible it resulted in marginalisation of women‘s experiences e.g. the public individual hearings. This theory of transitional justice has been criticised for failing to challenge the gendered power relations that women face. As a result the idea of restoring may in fact refer to a return to the same social status of women that is itself fundamentally unfair and unjust. Some theorists also view restoration and reconciliation as ―soft‖ options in situations where there exists impunity for crimes against women (Bell and O‘Rourke 2007:41; Rubio-Marin and de Greiff 2007:331,
332).
In theorising transitional justice as a theory of justice, the thesis resonates with transitional justice as a form of restorative justice. The perception that restoration and reconciliation are
51 ―soft‖ forms of accountability is misconceived as both notions in their genuine manifestation are coupled with reparative measures for survivors of conflict situations. As I will later discuss in the findings chapter of this thesis, reconciliation and restoration through reparations was highly rated by women victims interviewed as underlying their own theory of justice.
Furthermore, an effective reparations programme designed with women‘s participation can result in transforming the lives of women.
In rejecting a feminist theory on transitional justice, Bell and O‘Rourke propose making transitional justice more responsive to the needs of women (Bell and O‘Rourke 2007:42).
They recognise that transitional justice has the potential of securing substantial material gains for women in transition; they argue that feminists should emphasise strategies for harnessing these material gains.
3.2.2 A Feminist Analysis of the Law and the State.
Scully introduces another angle of the feminist critique of transitional justice based on the theories of the state and lawdeveloped by Smart and MacKinnon. She argues that transitional justice assumes that the law and the state can safeguard and protect women‘s rights. Feminist critiques of International Human Rights Law raise suspicion concerning the state as the site of solutions to injustices experienced by women. International law makes states accountable for non-enforcement and passing appropriate laws to assist women. Scully argues that this may result in the solutions for redress of violence against women and their inequalities being an issue only of implementation of international law (Scully 2009:30). She asserts that:
…there is a fundamental conceptual misfit…of trying to secure women‘s rights in transitional justice in terms of the state and the law only… particularly…in Sub-Saharan African where the state has so long been illegitimate (Scully 2009:30). Scully notes that the African state has since colonialism been deeply rooted in pillage and misappropriation. The solutions proposed in transitional justice debates can only stem from ―a nurturing welfare state‖ (Scully 2009:30).
52 In her article, Scully reiterates the arguments of Bell and O‘Rourke on how feminism has transformed the area of transitional justice. She further adds that feminist theory has more to offer than interventions and approaches to transitional justice. She asserts that the dominant theory is that politics and the society operate through social conracts. She proposes a gender analysis of human rights tradition and international law (Scully 2009: 31). Scully poses the powerful question of ―What does this mean for women, when authors charge that the very foundations of this law, both theoretical and practical, exclude women?‖ (Scully 2009:31).
She draws from Pateman‘s argument that the political contract theory was reached by men and empowered only men establishing patriarchy within the new society (Scully 2009:31).
Men became the new political subjects and formed political alliances based on brotherhood, which extended to the private and public sphere. Their role as heads of patriarchal families comprising women and children under their protection then gave them authority to contract in the public sphere. Men became agents in the political sphere by virtue of their role as husbands and fathers.
Scully also draws from MacKinnon‘s argument that the law is gender and it perpetuates discrimination by creation and maintenance of male dominance (Scully 2009:32). To illustrate her argument, MacKinnon used the law relating to rape. She argues that the law reproduced forms of sexual violence as it adjudicated rape from the male point of view. Scully hence asserts that using the law to address inequality or sexual violence against women or create a new gendered social and political order is a burdensome attempt (Scully 2009:32).
Similarly, Scully draws from feminist legal theory that incorporates both critical race and feminist theory. She states that ―one of the central arguments to emerge in literature in the mid- 1990s was scepticism of the centrality of the state to international law and the implications for women‘s interaction with international human rights, and their ability to make it work for their interests‖ (Scully 2009:32). The emphasis on the state in international law creates bias in favour of state sovereignty, which in turn harms women as they are poorly
53 represented in governance structures (Scully 2009:32). In other words, international human rights law that is the foundation of transitional justice, depends upon the binaries of private/public, female/male, which ensure that the public sphere represents the interests of men. Romany further suggests that international human rights law is understood as a ―blown up liberal state with all its patriarchal biases‖ (Scully 2009:33; Romany 1994:85). Romany further argues that the idea of the sovereign state that has to be left to its own devices to pursue justice within international conventions or resolutions is a tactic to allow men to continue abusing women. She argues that international law has to hold states accountable for violence against women whether it occurs in the private or in the public. Romany recommends a feminist position of ―embodied objectivity‖ that through the lens of intersectionality expressly recognises how knowledge is produced through political, gender, class, race structures and reveals these structures in order to combat them (Scully 2009:33).
In the same vein, Ni Aolain and Rooney propose an intersectionality paradigm to address gender discrimination in transitional justice mechanisms. In doing so, Ni Aolain and Rooney illustrate that ―transitional justice for women requires a very large and long field of vision, which extends beyond the realm of truth commissions, into the complexity of enforcement of laws and decisions, awareness of silences about masculinity, and the need to avoid stereotypes of women as natural peacekeepers‖ (Scully 2009:32 citing Ni Aolain and Rooney 2007). Ni
Aolain and Rooney highlight that transitional justice mechanisms tend to focus on the law and government to implement justice and secure gains for women. They called for a broader perspective for transitional justice that transcends the legal into the implementation of the law.
Scully adds that in failing to pay attention to how to implement decisions, women may be sidelined at the final stages of transitional justice processes even where they were more involved in the earlier stages (Scully 2009:34). She asserts the need to ensure that reparations proposed for women are actually implemented and gains secured through mechanisms like truth commissions are realised (Scully 2009:34).
54 3.3 Truth Commissions as Transitional Justice Mechanisms
By the time a 1986 publication entitled Transitions from Authoritarian Rule was completed and the National Commission on the Disappeared in Argentina was just getting underway, there was still no international recognition of non-judicial truth-telling as a transitional justice mechanism. This non-recognition extended to all other non-judicial strategies to be employed in post-authoritarian transition. By mid-1990s, this position had dramatically changed especially since many political transitions involved political compromises, which included immunity from prosecution for some repressors, preservation of some of their powers or even their incorporation into the new government (Hayner 2011:7, 8). Under international law, such immunity has not extended to gross human rights violations. As a result, truth commissions have taken shape as complementary rather than alternatives to criminal justice.
The rationale behind the tremendous growth of literature on truth commissions is hinged on the fact that the needs arising from a political transition have been found to be unfulfilled solely by criminal prosecutions. Where trials are held in national courts, post-transition justice is not easy to come by as the trials may be few in number, the courts may fail to convict, the judicial officers may be politically compromised, corrupt or lack expertise and the numbers of perpetrators may be huge hence straining investigation efforts. In the same vein, trials in international courts are limited as they only prosecute those most responsible for gross human rights violations. Consequently, courts may be unable to conduct fair and legitimate trials
(Mendez 1997:13).
According to Villa-Vicencio, a truth commission initiates ―a process that seeks to draw all parties that have been involved in a conflict, from grassroots to leadership levels, into a national conversation that is honest and thoughtful and motivated by a desire to maximise truth-seeking, truth-telling and acknowledgment‖ (Villa-Vicencio 2010:45). The national conversation breaks silence that surrounds the suffering of victims and prompts perpetrators
55 towards acknowledgment. Whether truth commissions are able to achieve this primary objective can only be assessed on a case-to-case basis.
Truth commissions document the national conversation in terms of human rights abuses that are perpetrated during a specific period and make recommendations for prosecutions, institutional reforms and reparations to victims. They also help promote reconciliation and peacebuilding. Villa-Vicencio points out that benefactors of past, repressive regimes must recognise and acknowledge that they carry with them privileges into the new society. These outcomes may be beyond the scope of most truth commissions as achieving them is a gradual process operating at different levels of society whilst the truth telling process is a one-off exercise (Villa-Vicencio 2010:45). Thus, a truth commission process may potentially initiate and promote the achievement of reconciliation and peacebuilding.
There have been forty-one(41) truth commissions established worldwide (Hayner 2011: 256).
Twenty (20) have been set up in Africa with most of those created after 1994 modelling the
South African TRC (Sriram 2010:3, 7; Moghalu 2010:76; Hayner 2011: xi; Fombad
2008).27Some truth commissions have operated simultaneously with international or hybrid tribunals e.g. Kenya, Sierra Leone. In other contexts, truth commissions have been created to fill the void of prosecutions e.g. Ghana, Liberia.
The first widely known truth commission was established in Argentina in 1983. It was not referred to as a truth commission but instead was named the National Commission on the
Disappeared (CONADEP).28 The term ―truth commissions‖ only emerged when Chile and El
27Truth commissions established in Africa are as follows: Algeria (2003), Burundi (1993), Central African Republic (2003), Chad (1991), Cote d‘Ivoire (2005), Democratic Republic of Congo (2005), Ethiopia (1992), South Africa (1995), Sierra Leone (2002), Ghana (2004), Morocco (2004), Liberia (2008), Togo (2009), Nigeria (1999), Rwanda (1999), Mauritius (2009), Sudan (2004), Kenya (2011), Uganda (1974), Zimbabwe (1985) 28However, Moghalu refers to an earlier truth commission established by President Idi Amin Dada in Uganda in 1974 to inquire into the disappearance of people in Uganda (Moghalu 2010:76). According to Hayner, the Idi Amin Commission was not established due to a political transition but rather in response to external political pressure on Amin to investigate disappearances that were perpetrated by officials in his own regime (Moghalu 2010:93; Hayner 2002:51). 56 Salvador established the National Commission on Truth and Reconciliation and Commission on the Truth in 1990 and 1992 respectively (Hayner 2011: 10).
3.3.1 Definition of a Truth Commission
There is still no universally accepted definition of the term ―truth commissions‖ and sometimes some scholars include different inquiries as forms of truth commissions. Hayner defines a truth commission as ―(1) focused on the past; (2) set up to investigate a pattern of abuses over a period of time, rather than a specific event; (3) a temporary body, with the intention to conclude with a public report; and (4) officially authorised or empowered by the state‖(Hayner 1994 cited in Hayner 2011: 11). Hayner critiques her definition by noting that it may be insufficient and too broad hence potentially including ―commissions of inquiry‖ as
―truth commissions‖. Hayner distinguishes a truth commission from a government human rights body and a judicial commission of inquiry. The former is ordinarily a permanent body that investigates, gathers information from the affected populace and recommends action for the state. On the other hand, the judicial commission of inquiry aims to clarify facts of one specific event rather than broad yet diverse events the stretched across stipulated period. For example the Akiwumi Commission and Waki Commission investigated specific events namely the ethnic clashes in 1997 and the 2007-2008 post-election violence respectively.
Freeman adds that the definition should state that ―(1) a truth commission focuses on severe acts of violence or repression; (2) the acts occurred during recent periods of abusive rule or armed conflict; (3) these commissions describe the causes and consequences of the violations;
(4) they investigate violations that occurred in the sponsoring state; (5) the commissions themselves are based in that state; (6) these bodies are victim centred; (7) they operate independently from the state‖ (Freeman 2006:14-22).
In revising her earlier 1994 definition, Hayner explains the meaning of the term ―truth commission‖ as: ―(1) is focused on past, rather than ongoing, events; (2) investigates a pattern
57 of events that took place over a period of time; (3) engages directly and broadly with the affected population, gathering information on their experiences; (4) is a temporary body, with the aim of concluding with a final report; and (5) is officially authorised or empowered by the state under review‖ (Hayner 2011:11,12).
Similarly, the Task Force report describes a truth commission as a ―governmental organ that is intended to construct a record of the tragic and barbaric history‖ (Task Force Report
2003:24). Truth commissions are recognised as state creatures, which provide countries with a mechanism for responding to gross human rights violations that were meted out for political, ethnic, gender, religious, resource control or ideological reasons.
The present thesis relies on these definitions. However, I stress that a truth commission must go beyond documenting the pattern of human rights abuses and specific experiences of victims and perpetrators. A truth commission must propose solutions with a reparative effect that will contribute towards democracy, national healing, unity, peace, justice and reconciliation.
Truth commissions have been established under many names (Hayner 2011:12). For example
―truth and reconciliation commissions‖ in South Africa, Sierra Leone, Peru, Chile etc. ―truth and justice commissions‖ in Ecuador, Haiti, Togo, ―commissions on the disappeared‖ in
Argentina, Uganda and Sri Lanka, ―truth, justice and reconciliation commission‖ in Kenya and ―historical clarification commission‖ in Guatemala (Hayner 2011:12). There is much in common with these bodies. However, their legal mandates, investigatory powers, impact and political contexts have varied. In the Chapter Five and Six, the study draws from the experiences of the truth commissions in South Africa and Peru while analysing its Kenyan counterpart.
58 3.4 The Relevance of Truth Telling Processes.
Underlying a truth commission is the conviction that a nation can only embark on the road to reconciliation and restoration once its past has been fully acknowledged and a process undertaken that allows the nation to understand the causes, motives and perspectives of those responsible for the gross violations of human rights and their victims (Villa-Vicencio
2010:45). The process of understanding and documenting the causes, motives and perspectives of victims and perpetrators is founded on the international duty of a state to investigate and make public the truth about past human rights abuses. This international obligation has been reiterated by international courts, policy papers, inter-governmental institutions and United Nations resolutions.
3.4.1 The Realisation of the Right to Truth
The right to truth was first adjudicated in 1988 in the Velasquez Rodriguez case by the Inter-
American Court of Human Rights where the state was obligated to investigate what had occurred to the disappeared and disclose the information to the families. In 1980, Velasquez
Rodriguez disappeared in Honduras and was presumed murdered. The disappearance and murder of Mr Rodriguez appeared to be state-sponsored, when authorities in Honduras failed to conduct investigations. The state of Honduras was taken to the Inter-American Court of
Human Rights. The Court held that Honduras was in violation of the American Convention on Human Rights and that states had a ―duty to prevent, investigate and punish‖ violations of human rights provided in the Convention. The Inter-American Court and Commission for
Human Rights found that truth telling in itself constitutes a measure of reparation that the state must satisfy towards the relatives of the deceased and society as a whole. It facilitates recognition of the dignity of the victims.
59 In 2005, the UN commissioned a report by an Independent expert on Impunity which espoused the international law and state practice as relates to the right to truth (Hayner
2011:23). The report was approved by the UN Office of High Commissioner on Human
Rights (UNOHCHR). The report states, ―every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes…and victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims‘ fate.‖29 In
Principle 6 of the report, it is noted that where a state seeks to benefit from a truth commission, its establishment, mandate and composition must be based on widespread public consultations specifically targeting victims of violence.
The UNOHCHR commissioned another independent expert report on the right to truth
(Hayner 2011:24). The report defines the right to truth as recognised in several international, regional and national treaties and resolutions. The report states that victims have a right to
―the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them.‖30
The right to truth lays the basis for the establishment of a truth commission. The difficulty in enforcing this right arises from the legal vacuum within the international arena on the methodology for its realisation (Hayner 2011:24). Furthermore, some transitional states may have no political will to implement the right to truth causing injustice for victims and whitewashing of truth telling processes.
In contrast to prosecutions, some transitional justice scholars argue that truth commissions are better avenues for eliciting the ―truth‖ than courts. Moghalu citing Hayner states, ―The
29See principles 2 and 4 in the Report of the independent expert to update the set of principles to combat impunity, Orentlicher D: Addendum UN Doc.E/CN.4/2005/102/Add.1 8th February 2005 30See paragraph 59 of the Study on the Right to the Truth: Report of the Office of the United Nations High Commissioner for Human Rights, UN Doc.E/CN.4/2006/91, February 8 2006 60 purpose of criminal trials is not to expose the truth…but to find whether the criminal standard of proof has been satisfied on specific charges. A measure of truth may emerge in this process, but trials are limited in the truth they are able to tell as they must comply with rules of evidence which often exclude important information‖ (Moghalu 2010:80, 81 citing Hayner
2002:100). In complex events involving several actors and even international players, a criminal trial may be even more challenged in establishing the ―truth‖ (Moghalu 2010:81 citing Koskenniemi 2002).
3.4.2 Establishing an Accurate Record of a Country’s Repressive Past
The other school of thought in support of truth commissions is based on its overall goal to establish an accurate record of a country‘s past events specifically dealing with the human rights violations in a country‘s history. A truth commission process can adopt a two-pronged approach. Firstly, the truth commission should address the needs and demands of victims and survivors. Secondly, it should also deal with the needs and demands of perpetrators and beneficiaries of the past regime (Villa-Vicencio 2010:45). A truth commission may also name perpetrators of grave yet unresolved crimes. The final report of a truth commission may require official and public acknowledgement of past crimes that were silenced; it may generate national dialogue on the plight that victims suffered under a past repressive regime.
Villa-Vicencio advises a ―deep and sincere conversation that is aimed at the emergence of a new social contract‖ (Villa-Vicencio 2010:45).
According to Hayner, a truth commission may not find ―new truth‖ but only break silence about unspoken truths and acknowledge them rather than deny and bury them in the past
(Hayner 2011:20). An official acknowledgement following the submission of the final report of a truth commission would then recognise the outcome of the investigations as the official truth. The Kenya TJRC Report demanded an apology from government of past human rights abuses which was taken up by President Uhuru Kenyatta, two years after the handing over of
61 the report.
Soyinka poses a reflective question for transitional societies: ―How far dare a nation go in seeking to accommodate both victims and perpetrators of past abuse?‖ (Soyinka 2000:81). In critiquing the amnesty process of the South African TRC vis-à-vis justice for victims, Soyinka suggests that South Africa should have moved beyond the ―hazy zone of remorse‖ towards ―a social formula that would minister to the wrongs of dispossession on the one hand, chasten those who deviate from humane communal order on the other, (and) serve as a criterion for the future conduct of that society, even in times of stress-and only then, heal‖ (Soyinka
2000:81).
On the other hand, Mamdani argues that ―truth‖ is not enough to ensure reconciliation. He asserts that reconciliation can only be realised through systematic socio-economic reform, which he categorises as ―a form of justice other than punishment‖ that constitutes structural change and restitution (Mamdani 2000:179). Under this pretext, some truth commissions focus on victims and respond to their needs by designing appropriate reparations programmes.
By listening to the accounts of victims and witnesses during the hearings, truth commission are able to give them a voice and bring a deeper awareness of their suffering to the broader public.
Proponents of truth-telling mechanisms argue that the full truth can give rise to forgiveness and reconciliation more than criminal trials (Hayner 2011:23; Moghalu 2010:81). Some assert that the concept of reconciliation is a primary purpose of creating a truth commission.
Archbishop Desmond Tutu argues that international criminal tribunals may disrupt fragile situations of transition and even though they may ensure accountability, such situations need more than retributive justice for healing. He notes that the judicial process alone cannot be effective in reconciling a divided society (Tutu 2003:90, 91). Nonetheless, the ability of truth commissions to achieve national, individual and political reconciliation from the official truth
62 has been an elusive goal in many post-conflict societies.
Majority of truth commissions struggle to promote reconciliation despite being aptly named as not just truth but reconciliation commissions. The challenge in achieving reconciliation may actually be founded on the characteristics of truth commissions. Truth commissions are meant to be temporary bodies and yet reconciliation whether national or individual is a long term goal that is unattainable in two or three years.
3.4.3 Assessing the Impact of Truth Commissions
The question of whether truth commissions have an impact based on their goals has been subjected to quantitative research of particular case studies. Firstly, Daly argues that it is unrealistic to expect that one accepted truth will emerge from a truth commission process in some contexts (Hayner 2011:25 citing Daly 2008). She draws this conclusion from the Serbs‘ denial of well-founded reports of abuse by Serbian forces. Mendeloff questioned the assumption that truth commissions promote peace and prevent future conflict. He concludes that these assumptions are very contentious and advocates of truth-telling processes ―claim far more about the power of truth telling than logic or evidence dictates‖(Hayner 2011:25 citing
Mendeloff 2004). Nonetheless, Hayner concludes that there is still lack of data on the general impact of truth commissions ―beyond broad critiques, anecdotal accounts, or single-country case studies‖ (Hayner 2011:25). Literature assessing the efficacy of truth commissions have emphasised the impact on human rights and democracy and not on conflict prevention.31 In a study done by Olsen, Payne and Reiter, it was found that transitional justice has a positive effect on democracy and human rights depending on the order and combination of the mechanisms undertaken. For instance, they found that if truth commissions are undertaken alone, there will be a negative impact on human rights and democracy (Hayner 2011:26 citing
31See Wiebelhaus-Brahm E(2010) Truth Commissions and Transitional Societies: The Impact on Human Rights and Democracy Abingdon, UK: Routledge and Olsen et al (2010) Transitional Justice in Balance: Comparing Processes, Wieghing Efficacy Washington, DC: United States Institute of Peace Press 63 Olsen et al: 2010). Truth commissions have a positive impact when combined with trials and amnesty.
Mendez describes as ―tokenism‖ the decision by a transitional government to prefer ―truth‖ over ―justice‖ as it is not a step in the direction of accountability and it ―equates justice with vindictiveness (Mendez 1997:15). He mentions that societies should pursue both objectives of
―truth‖ and ―justice‖ as much as they possibly can. On the other hand Wielbehaus-Brahm conducted a statistical analysis of four case studies that concluded that truth commissions have no significant impact on human rights and democracy in some contexts whilst in others a direct opposite result of truth commissions having a positive impact on democracy and human rights. To explain this conclusion, Wielbehaus-Brahm argues that the impact of truth commissions depends on contextual factors and it is not possible to treat alike, truth commissions established in different parts of the world (Hayner 2011:26 citing Wielbehaus-
Brahm 2010). The indicator for positive impact should instead be to distinguish whether a truth commission was strong and effective in its political context.
3.5 Transitional Justice within the Kenyan Context.
Transitional justice has been defined within a context of change of political regime. This aspect raises doubts amongst some Kenyan legal scholars as to whether Kenya was in a period of political transition. Before the 2002 general elections, Wanjala cautioned that Kenya could only be considered transitional if the elections were followed by ―a fundamental reordering of the social, economic and political order‖ (Wanjala 2002:98). Although the 2002 elections marked a fundamental reordering of the political order, the state failed to establish mechanisms to deal with the large-scale human rights abuses experienced in the past with a view to achieving national cohesion and sustainable peace.
64 Similarly, after the 2007 elections, Musila argues that the nature of Kenya‘s transition was still in question. Nonetheless, the 2007-2008 post-election violence was a springboard for instituting mechanisms that would address the violent past of Kenya. Musila, however, notes that the then Government of National Unity was not representative of the will of the people and there is apparent manipulation of systems by the political elite to avoid accountability for past violence (Musila 2009:449).
The transitional challenge within the Kenyan context is that there has been no radical change of the political regime to sustain a revolutionary overhaul of the social, political and economic order. A revolutionary overhaul would be characterised by a legitimate confrontation of the past by holding accountable those persons who are responsible for human rights abuses. An even greater problem occurs when the ―new‖ political regime consists of the same individuals who formed part of the past political regime. Some of these individuals have been associated with unresolved national corruption scandals and human rights violations in Kenya‘s past.
Inevitably, the transitional justice in Kenya has been inseparable from the wider political context. The redress of past human rights injustices has pitted ―pro-reformist forces‖ against
―pro-status quo forces‖. The latter forces preferring retention of the oppressive post- independence political, social and economic order at the expense of the majority of Kenyans
(Musila 2009:449).
Musila argues that the 2007-2008 transitional justice policy in Kenya was not well reasoned and articulated (Musila 2009:451). The Kenya National Dialogue and Reconciliation
Framework was negotiated at a time when the country was in a crisis, the emphasis being on ending violence and instituting a power sharing government. He adds that the implementation of transitional justice mechanisms mainly took place in a polarised political environment whereby the then President and Prime Minister had different yet competing ideologies on justice and how to confront the past injustices. This political environment, as we shall later discuss, had a huge impact on the efficacy of the TJRC processes and its outcomes.
65 3.6 Truth Telling Processes in Kenya.
In April 2003, the Minister of Justice and Constitutional Affairs set up a Task Force for the establishment of a truth commission in Kenya. The Task Force comprised eighteen (18) members, thirteen (13) males and five (5) females.32 The Secretariat of the Task Force included the Chief Executive Officer/Secretary to the Task Force and three lawyers seconded by the Kenya Human Rights Commission, Office of the Attorney-General and CLARION.
The Task Force was chaired by Prof Makau Mutua. In setting up the Task Force, the government seemed genuine in confronting the past human rights violations. Its final report,alludes to the establishment of the Task Force as representing―the transformation of the soul of the Kenyan state and a significant first step in the long and arduous journey to reclaim the moral and political fibre of the country‖ (Task Force Report 2003:9).
The mandate of the Task Force was to collate the views of Kenyans on whether or not a truth commission should be formed. The Task Force ―disseminated and publicised its work and mandate… through the press and other fora so as to effectively reach the public‖ (Task Force
Report 2003:15). The Task Force conducted public hearings across the country collecting views of Kenyans on establishing a truth commission. The report further states that the public hearings were open to all and granted an opportunity to those who wished to speak as much as was reasonably possible. The Task Force asserts that in selection of speakers in the public hearings special consideration was given to gender and disability (Task Force Report
2013:15). The Final Report of the Task Force attests that the provincial visits reached the vast majority of Kenyans and ―gave citizens the most transparent and easily accessible fora to air their views‖ (Kenya. Task Force Report 2013:15). The views of Kenyans were recorded and
32The members of the Task Force were: Prof Makau Mutua, Chair of the Task Force, Rev. (Dr.) Timothy Njoya, the Vice Chair of the Task Force, Rev Mutava Musyimi, Mr. John Githongo, Mr. Davinder Lamba, Ms. Jane Kiragu, Ms. Raychelle Omamo, Ms. Mumina Konso, Ms. Zarina Patel, Dr. Josephine Ojiambo, Sheikh Ali Shee, Bishop (Prof.) Zablon Nthamburi, Rev. Patrick Rukenya, Dr. Amukowa Anangwe, Mr. Julius Sunkuli, Mr. Kibe Mungai, Mr. Tirop Kitur and Mr. Kairichi Marimba. Ms. Roselyne Lagat-Korir was the Secretary to the Task Force; she coordinated and oversaw the Secretariat.
66 analysed. They formed the fundamental basis for the findings, conclusions and recommendations made by the Task Force in the report (Kenya. Task Force Report 2013:15).
Since not every person could be accorded an opportunity to speak during the public hearings, the Task Force also solicited for written submissions from the public and organisations through the hearings or media. The written submissions also formed part of the data that the
Task Force analysed. Furthermore, the Task Force commissioned research and studies by experts in the field of transitional justice and truth commissions for evaluation of the experiences of other countries where truth commissions had been established.
In its report, the Task Force stated:
The people of Kenya have spoken, and the Task Force is privileged to report that Kenyans want a truth, justice and reconciliation commission established immediately. The overwhelming majority of Kenyans, over 90 per cent of those who submitted their views to the Task Force, want the government to establish an effective truth commission, a vehicle that will reveal the truth about past atrocities, name perpetrators, provide redress for victims, and promote national healing and reconciliation. (Kenya. Task Force Report 2003:5). In its report, the Task Force admits that it was constrained by factors such as time limitation, limited participation and the geographical expansion of Kenya.
3.6.1 Gender Considerations in the Work of the Task Force.
The importance of ensuring a gender sensitive truth telling process dates back to the work of the Task Force (Kenya. TJRC Vol. IIC 2013:4). Being alive to the challenges of engaging women in truth commissions, members of the Task Force had conferences with women‘s organisations such as Federation of Women Lawyers(FIDA Kenya) (TJRC Vol. IIC 2013:4).
The report of the international conference observes:
… across the world it has been reported that is has been difficult for women and children to access truth commission processes in a meaningful way. Where women do indeed participate, they merely go through the motions and may not express their hurt. They will most probably talk about the suffering of their loved ones but not themselves. Truth commissions work in cultures that muffle women‘s voices most of the time and may, if not conscious of this limitation, alienate women from their processes. The truth
67 commission should therefore go out of its way to design procedures and methods that make sure that women are heard. (Kenya. Task Force Report 2003:119).
The participation of women was imperative at the stage of the design of the TJRC and the actual conduct of the TJRC‘s process. Despite acknowledging the patriarchal nature of the society and its marginalisation of women, the Task Force did not design its processes in a manner that would adequately facilitate women‘s participation within the gendered spaces.
The one-day training with the Task Force on women‘s involvement in truth commissions appeared to be insufficient to equip it with strategies on soliciting views from women on the establishment of a TJRC. The public hearings of the Task Force, which substantially formed the basis for the TJR Act and the TJRC, had very low participation from women. The Report of the Task Force shows that of the contributions made during the public hearings, 72 (11 percent) were from women and 555 (89 percent) were from men (Kenya. Task Force Report
2003: 54-109). With the huge gender disparity, the final proposals made by the Task Force can rightly be described as male-centered. In the same vein, the composition of the Task
Force was not gender balanced. The Task Force comprised 13 (72 per cent) male members and 5 (28 per cent) female members. Both the Chairperson and the Vice-Chairperson of the
Task Force were males. Consequently, with the minimal engagement of women at the decision-making phase of a truth commission in Kenyan, the TJRC can affirmatively be said to have been defined from a male point of view. This gendered starting point of the Task
Force inevitably impacted on the TJRC and its limitations in fully involving women and in turn having a significant impact on their lived realities.
The Task Force expressed concern over the low turnout of women in its hearings and recommended that the proposed truth commission should be more sensitive to women‘s needs. Its report notes:
The Task Force was deeply concerned by the low numbers of women who turned up at its public hearings to make submissions. Although the Task Force encouraged the few women present to speak up, this problem will have to be addressed once the truth
68 commission is set up so that the issues that are particular to women are adequately dealt with. Kenya, like most countries, has deeply embedded prejudices, policies, and traditions that have historically marginalised women and made them invisible in the public square…A truth commission must pay particular attention to the participation of women and the abuses perpetrated against them. Otherwise, a truth commission will have little or no beneficial value in addressing the plight of women (Kenya. Task Force Report 2003:6). The report of the Task Force fell short in describing the strategies that the proposed TJRC would employ to participate in its processes.
3.6.2 The Realities of the Kenyan Truth, Justice and Reconciliation Commission
On 22nd July 2009, nine commissioners, as opposed to the eleven (11) recommended by the
Task Force, were appointed by former President Mwai Kibaki to serve in the Kenyan TJRC.
On 3rd August 2009, the commissioners were sworn into office. Six of the Commissioners were Kenyan citizens namely: Amb. Bethuel Kiplagat, Prof. Tom Ojienda, Maj-Gen (Rtd)
Ahmed Farah, Ms. Margaret Shava, Ms. Betty Murungi and Ms. Tecla Namanchanja. On the other hand, three of the commissioners were non-Kenyan citizens namely Prof. Ronald Slye from the United States of America, Judge Gertrude Chawatama of Zambia and Amb. Berhanu
Dinka of Ethiopia. Hence the TJRC had five male commissioners and three female commissioners.33Amb. Bethuel Kiplagat and Betty Murungi were nominated to the positions of the chairperson and vice-chairperson of the TJRC respectively (TJRC Final Report 2013
33Various stakeholders were called upon to nominate people to serve in the TRC. A total of 299 nominations were received. The President Mandela appointed a selection committee that conducted public hearings with shortlisted candidates. Twenty-five names were forwarded to the President. The President, in consultation with his cabinet, selected fifteen commissioners from the list of twenty-five (Boraine 2000:71). An additional two members were appointed by the President to increase the representativeness of the TRC (Shea 2000:25). A total of seventeen (17) commissioners were appointed with Archbishop Desmond Tutu as chairperson and Dr Alex Boraine as Vice-Chairperson. The membership of the TRC represented all racial groups in South Africa and was multi-disciplinary in nature.
69 1/1: 24).34 The members of the Commission were mainly drawn from the disciplines of law, security, diplomacy and peace and conflict studies.35
3.6.2.1 Organisational Structure of the TJRC
Throughout its lifetime, the TJRC formulated performed its duties through nine thematic working groups. The working groups comprised three to four commissioners (TJRC Final
Report 2013, 1/1:25). One of the themes involved gender, which guided the commission into implementing a gender perspective from the time of its inception. Considering gender issues from the outset of any truth commission was expected to ensure that the ―full truth‖ about women‘s experiences is captured.36The TJR Act allowed the Commission to also set up committees for more efficient performance of its functions. As a result, the TJRC established seven committees borrowing largely from the South African TRC.37 The committees were:
1. Human Rights Violations Committee
2. Reparations and Rehabilitation Committee
3. Reconciliation Committee
4. Amnesty Committee
5. Finance and Administration Committee38
6. Logistics, Security and Procurement Committee
34The President‘s appointment of the vice-chairperson was in contravention of section 11(2) of the TJR Act. The law conferred power on the commissioners to appoint a vice-chairperson, of opposite gender, during its first meeting. 35Amb. Bethuel Kiplagat is an expert in peacebuilding, diplomacy and international relations, Tecla Namachanja has expertise in conflict transformation and peacebuilding, Prof. Tom Ojienda is a legal academic, advocate and consultant in land reform, human rights gender and legal practice, Prof. Ron Slye is a legal academic, consultant in public international law and international human rights law, Ms. Margaret Shava is an advocate and expert in management, peacebuilding, international refugee law and democracy, Ms. Betty Murungi is an advocate and expert in peacebuilding, Maj-Gen (Rtd) Ahmed Farah is a security consultant, Amb. Berhanu Dinka is a diplomat with expertise in peacebuilding and Judge Gertrude Chawatama is a lawyer and judge of the High Court in Zambia. 36 The thematic groups were: Structure Working Group, Gender Working Group, Stakeholder Collaboration Working Group, Rules of Procedure Working Group, Human Resources Working Group, Security Working Group, Outreach and Public Awareness Working Group, Internal Rules and Policy Working Group, Communications and Media Working Group 37The South African TRC had three committees namely Human Rights Violation Committee, Reparations and Rehabilitation Committee and the Amnesty Committee 38 The Finance and Administration Committee had a sub-committee named Recruitment and Human Resources Sub-committee 70 7. Communications and Civic Education Committee
In its organisational structure, the Commissioners had a secretariat for its day to day administrative and mandate operations. The Commission was allowed by its constitutive TJR
Act to appoint officers to assist in the execution of its mandate. The secretariat was headed by the Secretary to the Commission who was also referred to as the Chief Executive Officer
(CEO). The CEO was responsible for the day-to-day administration and management of the affairs of the Commission. On the other hand, the technical responsibilities were carried out by eight departments within the secretariat. Each department was headed by a Director responsible for supervising, directing and coordinating work within his or her respective department. Majority of the directors and the staff were appointed in August 2010 and the departments were fully operational in September 2010. The final report asserts that at the peak of the operations, the TJRC had 150 staff members (TJRC Final Report 2013, 1/1:31).39 The departments established to run the affairs of the Commission were:
• Civic Education and Outreach Department: It was responsible for educating and
engaging with the public so as to encourage participation in the TJRC processes. To
achieve this, the department coordinated the dissemination of information concerning
the Commission to the general public through education and awareness campaigns,
developed and reviewed civic education and advocacy materials. Finally, the
department coordinated reconciliation efforts. The Civic Education department
comprised a Director and two programme officers to serve the entire country. The
department became operational in August 2010 with the recruitment of its staff.
• Research Department: It catered for all the research needs of the Commission and its
departments. Its largest task involved coordinating the writing of the final report of the
TJRC. The department consisted of a director, four senior researchers and six assistant
researchers.
39The number of staff gradually decreased as the TJRC concluded its term. In November 2012, when the Commission was expected to wind up its operations, the number of staff had totalled 60. Upon receipt of extension of term, and to finalise pending mandate activities, in January 2013 the TJRC re-hired staff. 71 • Investigations Department: Its role was to collect, investigate and analyse the
information that the Commission received so as to build a complete and accurate
historical record of gross human rights violations. It was responsible for identifying
victims that fitted within the mandate areas of the Commission, interviewing and
collecting evidence from victims and witnesses. The department was also charged
with identifying sites of gross human rights violations for Commission‘s visits. Due to
the sensitivity of the responsibilities of the department, it was headed by a New
Zealand national Director and seven investigators. The final report reveals that a non-
Kenyan director in the Investigations Department was imperative to dispel ethnic
suspicions and perceptions of bias that could be intensified if a Kenyan citizen was
holding the office (TJRC Final Report 2013, 1/1:32).
• Legal Affairs Department: It was charged with dealing with all legal matters related
to the execution of the mandate of the TJRC. It was responsible for organising and
conducting the public hearings of the Commission, which involved preparing and
leading witnesses. Finally, the department also conducted trainings on the
Commission mandate to specific stakeholders e.g. lawyers. The department consisted
of the Director and six legal officers.
• Special Support Services Department: It coordinated counselling services to victims
and witnesses and catered for their general welfare to facilitate participation in the
TJRC e.g. providing accommodation and travel expenses. The department was
responsible for organising women‘s hearings and thematic hearings on women,
children and persons with disabilities. It consisted of a director and four programme
officers.
• Communications Department: It coordinated the engagements between the
Commission and the media and by extension, the general public. The department also
72 managed the Commission‘s media and public relations. It consisted of the Director
and two communication officers.
• Finance and Administration Department: It was responsible for the provision of
logistical and administrative support to the Commission including procurement of
goods and services and preparation of budget and financial accounts of the
Commission. It consisted of the Director and 77 administrative staff.
• Documentation and Information Management Department: It was responsible for
management and provision of the Commission‘s information and communication
needs. It was responsible for the safekeeping and maintenance of the database,
records, website and documents of the Commission. Again due to the sensitivity of the
information in the database and to dispel perceptions of bias, the position of Database
Manager was held by an Indian national (TJRC Final Report 2013, 1/1:32). The
department consisted of the director and thirteen officers.
The TJR Act provided that the Commission‘s headquarters shall be in Nairobi. The
Commission established four regional offices i.e. Mombasa, Eldoret, Garissa and Kisumu
(TJRC Final Report 2013, 1/1: 33). The Mombasa and Eldoret regional offices served the entire Coast and Rift Valley regions respectively. The Kisumu regional office covered the
Nyanza and Western regions. The Garissa regional office covered North Eastern and Upper
Eastern regions. The national office covered Central, Nairobi and Lower Eastern regions.
Each regional office was managed and administered by a regional coordinator and an assistant regional coordinator of the opposite gender. The regional offices of the TJRC played the role of mobilising the public in their respective regions to participate in the Commission‘s processes. Statements and memoranda from the regions were received in these regional offices and forwarded to the national TJRC offices.
73 3.6.2.2 Operational period of the TJRC
The TJR Act provided the Commission with two years and one possible extension of six months from the National Assembly to execute its mandate.40 The final report admits that the two year operational period was ―ambitious even in the best circumstances‖ to effectively implement the broad and complex mandate of the TJRC (TJRC Final Report 2013, 1/1:36).
This challenge was further aggravated by the difficult circumstances within which the
Commission operated. The TJRC was granted three extensions to conclude its processes within the four years period of its existence ending on 3rd May 2013 (TJRC Final Report
2013, 1/1: 37). 41
3.7 Conclusion
As discussed in this chapter, transitional justice through truth commissions is important in post-conflict states as it promotes national healing from past human rights abuses by documenting and analysing these violations, holding perpetrators accountable and providing reparations for victims. Truth commissions have been established in many African countries,
40 See section 20(3) of the TJR Act 41The first extension was from November 2011 to May 2012. The final report indicates that the first extension was requested as the Commission found that it would be impossible to execute its mandate within the two years statutory period due to the pending work and its limited capacity. By June 2011, the TJRC had only conducted hearings in full in North Eastern region and partly in Western region (TJRC Final Report 2013, 1/1: 36). The TJRC found that with hearings yet to be conducted in six regions and other mandate activities pending, the Commission would be incapable of finalising its work without an extension of its life from the National Assembly (TJRC Final Report 2013, 1/1:36). Therefore on 24th June 2011, the TJRC requested the National Assembly to extend its life for a period of six months as provided in the Act. The National Assembly considered the request on 18th August 2011 and voted to extend the term of the Commission as required.
The second extension was for purposes of preparing the TJRC‘s final report. In April 2012, the Commission concluded 220 hearing sessions during which more than 680 witnesses testified (TJRC Final Report 2013, 1/1: 37). The Commission had only one month to finalise and submit its report. With the transcripts for the hearings conducted in 2012 not reviewed, the report writing required more time. In April 2012, the TJRC requested that its three months‘ statutory winding up period (from 3rd May to 3rd August 2012) be allocated to its operational period. For the request to be possible, the National Assembly had to effect an amendment to the TJR Act. It was only until 7th August 2012, that National Assembly considered and approved the request. Further, the Commission could neither undertake any mandate operations e.g. notifications to persons adversely mentioned to respond to allegations against them nor incur expenditures on these operations (TJRC Final Report 2013 1/1: 37). The TJRC was expected to submit its final report on 3rd August 2012. In light of the already discussed difficult circumstances, the Commission was unable to do so as the request for extension was approved on 7th August 2012. Therefore the Commission made the third request for an extension. On 27th November 2012, the National Assembly voted unanimously to extend the life of the Commission to 3rd May 2013.
74 Kenya included. The road map to the establishment of the Kenyan TJRC was long and uncertain due to interferences by the political elite. Nonetheless, the 2007-2008 political violence was a catalyst for its institution. However, women‘s participation in these processes was minimal. The structure of the TJRC was modelled against the SA TRC. Since these truth commissions are creatures of the state and law. Feminists have expressed scepticism as to the efficacy of the state and law to bring transformational change for women including the barriers they face when engaging in such spaces. The subsequent chapters demonstrate the complexities in women‘s participation within truth commissions.
75 CHAPTER FOUR: RESEARCH METHODOLOGIES AND METHODS
1.0 INTRODUCTION
There is an inextricable link between theories, methods and methodologies in the research process (Bentzon et al 1998:93). Methodologies refer to the approaches undertaken in the field to prove or disprove the initial assumptions. Research methods are the techniques employed to gather desired data from the target group of the present study. This chapter describes themethodological approaches employed during the research journey, the accompanying methods of data collection and challenges experienced during the study period.
The methodologies and methods are linked to the research questions to best portray how they were best suited to find the requisite answers.
4.1 Research Methodologies
4.1.1 Why a Qualitative Research Design.
In the course of field research, a myriad of research methodologies were used concurrently to prove or disprove the research questions. The present research study used a qualitative research design as opposed to a quantitative research design for several reasons.42The selection of the research design would depend on the purpose of the research, the manner in which theory is developed, the research questions to which one seeks answers, the methods of data collection and lastly the sampling strategy (Robson 2002:164).
Firstly, the research problem herein required grounded theorybuilt from incoming data from an unfolding TJRC process. Hence the study did not have fixed and pre-determined theory prior to data collection for all research questions. Therefore the qualitative research design
42 Qualitative and quantitative research designs are also referred to as ―flexible and fixed research designs‖ respectively (Robson 2002:163). 76 was preferable. A quantitative research design needs a substantial amount of pre- determination of what the researcher is going to do and how she is going to undertake the research study. Further, a developed theoretical framework and extensive pilot study may be done prior to the main study to uncover in advance what is feasible (Robson 2002:4; Anastas and MacDonald 1994). With theories evolving as the TJRC process unfolded, it was impossible to have a substantial, pre-determined theoretical framework.
Secondly, the purpose of the research is to provide a deeper understanding of the complexities surrounding women‘s participation in the Kenyan TJRC so that similar transitional justice actors can effectively respond to women‘s needs and concerns. To adequately respond to all the research questions herein, I needed to describe and interpret women‘s experiences within and outside the TJRC. Again, to achieve this purpose a quantitative research design would have been inadequate as it would restrain delving deeply into the lived realities of women and the TJRC, probing emerging issues from the field and developing theories grounded in data.
Aquantitative research design would have been guided by pre-set questionnaires that do not anticipate the need for deeper probing to reveal the motivations behind women‘s limited participation in the TJRC.
Thirdly, the research questions formulated to guide the present study were in themselves qualitative in nature. The research question sought answers on women‘s needs and concerns, the applicability of the law, the interplay between law, policy and women‘s lived realities and the manifestations of power in engagement with the TJRC. These answers could not have been established in a quantitative study where there is substantial amount of pre-specification.
The answers to these questions were unknown at the time of fieldwork. By employing a qualitative research design, the study was guided by incoming, empirical data.
Fourthly, the research questions normally inform the methods of data collection. The research questions in the present study could only inform qualitative methods of data collection. As
77 discussed in detail in this chapter, the research methods best suited for collecting data on the research questions included in-depth interviews, observation and focus group discussions.
Obviously these primary data collection methods were complemented by multiple secondary sources e.g. TJRC archival reports, workshop documents and court records.
Lastly, the sampling strategy that was needed to get the answers to the research questions inevitably had to be snowball sampling and purposive sampling.43 According to Robson, snowball sampling involves identifying one or more individuals from the population of interest i.e. women, TJRC, civil society etc (Robson 2002:265). Once the researcher has interviewed the individuals, they are used as informants to identify other members of the population and the cycle goes on. The snowball sampling method was particularly useful in locating victims of political violence in Mombasa County who live discreetly within the community to safeguard their personal security. My entry point to victims of political violence was selected civil society organisations that conduct peace and transitional justice programmesthatlinked me to self help groups comprising victims of political violence. It was imperative to locate direct victims of political violence as they would answerresearch questions concerning their preferred reparations, their priority needs and concerns for sustainable peace and whether peace and reconciliation processes through the TJRC fully involved women victims of political violence.
In the same vein, purposive sampling, also referred to as theoretical sampling, was also applied to build a sample that enabled me to satisfy the research needs, interest and areas of focus (Robson 2002:262 citing Glaser 1992, Strauss and Corbin 1997, 1998). Purposive sampling is the preferred sampling strategy for qualitative research designs such as the one applied in this study. In the quantitative research designs, there is normally a statistical generalisation from sample to population. During the research design stage, an initial
43Snowball sampling is described by Bentzon et al as the dung beetle method whereby data is collected, sifted and analysed for purposes of developing new methodologies, perspectives and theories (Bentzon et al 1998:18)
78 sampling was carried out and the analysis of the data extended the sample in ways that were guided by the emerging theory. I found this sampling method very useful in building theory and finding ―new‖ data sources that had not been envisioned at the time of the research design stage. For instance, at the beginning the data sources targeted only victims of the 2007-2008 post-election violence for purposes of insights on their interactions with the TJRC. In the course of data collection, I found victims of the 1992 and 1997 politically and ethnic motivated violence which event was also captured within the mandate of the TJRC. The sample was extended to include 1992 and 1997 victims.
The present study complements traditional qualitative research methodologies with feminist theoretical standpoints. A feminist approach was necessary as the study sought to unveil the patriarchal ordering of society ingrained in law, culture and religion that limits women‘s right to participation within formal peace processes such as the TJRC. Quantitative research has been critiqued as ―representations of patriarchal thinking that result in a separation between the scientist and the persons under study‖ (Fine 1992, Mertens 1998:162). Qualitative research designs are recommended for any study with a feminist perspective. Other researchers argue that qualitative research methodology is not inherently feminist and that the feminist views of developing a non-exploitative research is not a necessarily a feminist approach to methodology (Robson 2002:198, Davidson and Layder 1994:217 and Reinharz
1992).
The present study was enriched by fusing different aspects of three qualitative research methodologies namely grounded theory studies, legal pluralism, ethnography studies and case studies (Cresswell 1998:65; Robson 2002:164).
4.1.2 Grounded Theory
Grounded theory is an iterative process in which data and theory, lived reality and perception about norms are constantly engaged with each other to help the researcher decide what data to
79 collect and how to interpret it. In the study, the grounded theory approach was used as research methodology and analytical tool. As a research methodology, grounded theory was very helpful due its unique complexity of investigating an unfolding process. Consequently, the initial assumptions inevitably evolved in response to the data as it trickled in. The challenge was to adopt a flexible and open mind that responds to incoming data rather than compartmentalising it in pre-existing and preconceived notions about the problem. It was necessary to constantly engage and evaluate the data. In grounded theory, the interaction between developing theories and methodology is constant as preliminary assumptions direct the data collection and then the collected data when analysed indicates new directions and new sources of data (Bentzon et al 1998:17). Consequently, the generated theory is grounded in data obtained in the course of the study especially the actions, interactins and processes of the people involved (Robson 2002: 190, 191). Hence, the grounded theory approach allows the researcher to stumble upon theories and concepts and develop research assumptions from the field. For instance while in the field I found that power was manifested in several ways and impacted on the nature and extent of women‘s participation. The TJRC exercised hidden and visible power by determining the participants during its hearings and the nature of violations to be heard respectively; most of these violations were however not suffered by women directly hence limiting the number of testimonies drawn from women.
The grounded theory requires several field visits for data collection and analysis of data between visits so as to constantly engage data and theory. Forty-three (43) field visits were conducted from September 2010 to August 2013 involving interviews, focus group discussions and observation. These field visits were undertaken until a saturation point was reached.
Empirical data from relevant sources (female and male victims of political violence, NGO officers, TJRC officers etc) was sought to prove or disprove all the research questions. First, one research question was that women as a social group preferred collective reparations from
80 the TJRC for systematic discrimination. In employing grounded theory, I collected views of women, both victims and non-victims, on their preferred form of reparations. I found that women victims categorically refused collective reparations as they would benefit the entire community including perpetrators of violence. The reparative effect of collective reparations would not be felt by women victims if they were not complemented byindividual, monetary reparations. This finding would not have arisen without applying grounded theory to reveal women‘s preferences. Second, the study had a research question that numerical representation of women in the TJRC wouldresult in other women being positively confident that their interests were represented. This research question was disproved when it was found that women at the grassroots opined that ―office women‖ were unconscious of their interests and needs.They described ―office women‖ as being capable only of defending their own rights.By employing a grounded approach in building theory, I developed a new perspective linked to the intersectionality theory that emphasises on the complexities of women‘s multiple and layered identities. Women‘s multiple identities related to ethnicity, class, religion, age and state of victimization i.e. women victims as against women generally.I examined whether feminine presence translated to feminist activism. I argue throughout the study that women‘s multiple identities had an impact on their participation within the TJRC including whether women perceived that their needs and interests would actually be addressed.
Upon conclusion of fieldwork, the grounded theory was appliedas a data analysis tool. A grounded dimensional analysis was undertaken by merging grounded theory with a dimensional analysis.44I began by categorising data as is the ordinary practice in grounded theory studies.45The research questions were categorized into the following six thematic groups based on happenings around women‘s participation in the TJRC:
44Dimensional analysis is committed to an expansive, early process of identifying and designating dimensions and their properties to expand the analyst‘s understanding of the object of study; the relevance, complexity and possibilities of any dimensions can generally only be determined by understanding the perspective from which it is viewed (Bowers and Schatzman 2009:92,93). 45 A category is a unit of information made up of event, happenings and instances (Robson 2002:192, 194). 81 1) Inadequacy of domestic laws and policies in guaranteeing women‘s participation in
peace processes through the Truth, Justice and Reconciliation Commission
2) The impact of social, economic and political dynamics on women‘s participation in
formal peace processes such as the Truth, Justice and Reconciliation Commission
3) The level of Kenya‘s compliance with its international human rights obligations on
engendering peace, reconciliation and reparation processes
4) The interplay between the law on participation in peace processes through the Truth,
Justice and Reconciliation Commission and the lived realities of women
5) Articulating or suppressing women‘s voices: An analysis of the inclusion of women‘s
needs and concerns in the promotion of peace, justice and reconciliation through the
TJRC
6) The interrelation between existing transitional justice mechanisms in Kenya and its
impact on women‘s participation
At the beginning, these perspectives potentially had an impact on women‘s participation in the TJRC process. I integrated them into my initial theories, which I later narrowed down to core themes that I found most significant in the study. Whereas traditional grounded theory directed me to identify the basic social processes on women‘s participation in the TJRC at the onset of analysis, the dimensional analysis held me back from making definitive theories very early until all the dimensions (characteristics) of the study were identified, assigned relative value and inferred (Bowers and Schatzman2009:94). After personal and deep reflection on the gathered data, the various dimensions (characteristics) were conjured into four definitive categories or themes.
The first theme involves the legal language and mandate of the TJRC, which covers research questions 1, 5 and 6. The TJRC is established under the TJR Act. It hence becomes very
82 important to research on the law, for whose benefit and interest it was enacted and its adequacy in addressing the needs of women within the context of Mombasa County.
Furthermore, the study is a doctoral thesis in Law. Consequently, it must interrogate the legal dimension.I interrogated the extent to which the legal framework of the TJRC addressed women‘s human rights violations. Data that was collected revealed that laws added and stirred women in the TJRC process hence limiting women‘s effective participation. The law herein included informal rules of the game which were exercised by the TJRC and impacted on who participates, how they participate and the outcome of their participation.
The second theme is the nature of women‘s participation based on findings from the above- mentioned research questions 2, 3, 4, 5 and 6. The essence of this research topic is women‘s participation. Therefore, the nature and level of women‘s participation had to be the starting point. I found a number of dimensions that impacted generally on public participation in the
TJRC e.g. the controversy surrounding the Chairperson of the TJRC, limited funding and public education, commission fatigue and disengagement of civil society organizations from the TJRC. These dimensions were vital in contextualizing the nature of women‘s participation in the TJRC. Under this theme, I chose to focus on the strengths and weaknesses in women‘s participation in the different phases of the TJRC process i.e. statement taking, public hearings, women‘s only hearings and the Final Report.46 The research findings also pointed out the different capacities of women within the TJRC and the heterogenous nature of the woman. I hence problematised the concept of woman and employed an intersectional analysis of the participation of women as Commissioners, staff of TJRC, witnesses and observers.
Due to a grounded dimensional analysis, I found that factors such as low socio-economic status, gender roles and stereotypes, culture, family, religion and patriarchal attitudes on
46The TJRC processes also included reconciliation fora and focus group discussions. However, these additional processes fed into main phases of statement taking, public hearings and final report.
83 participation in public affairs had an impact on women‘s participation in the TJRC. In other words, the concept of legal pluralism emerged as a useful theoretical basis for this grounded methodological approach. Legal pluralism requires the recognition of regulatory or normative systems other than formal law that affect and control people‘s lives (Bentzon 1998:41). This theory identifies situations, which are characterised by the presence of plural normative orders in a social field. The present study recognised that informal rules may affect the lives of women and men who came into contact with the TJRC. These informal rules also shaped the
TJRC. In interactions with respondents, it was found that normative systems such as religion, culture, gender roles and the family played a huge role in stifling women‘s participation in formal peace processes. These normative systems also perpetuate women‘s low economic status through barriers that hinder them from transcending the private into the public sphere.
One key informant asserted that in the Coastal region, the Islamic religion and culture had an impact of generating ―rules‖ that a woman‘s place remains in the private sphere and she could not be allowed to speak in public arena. The women who were bold enough to resist and defy these rules received a backlash from the society, mostly men. As a result, some Muslim women‘s voices were silenced by these religious and cultural norms. One woman in the
Kwale County women‘s hearing stated:
A woman … doesn‘t have a say. We who try to speak are labelled prostitutes. How do we then help other women? Who can accept being branded a prostitute? Only men in Duruma and Digo have a say.47 Yesterday when we wanted to speak at the public hearings some men here at the gate told us we want to sell them out. If they can step on us here how much more when we are at home? To truly understand the complexities behind women‘s participation in the TJRC, it was essential to investigate normative and regulatory systems such as religion, culture and the family that have an impact on women‘s lived realities. The study hence appreciated a broader meaning of the term ―law‖ to embrace extra ―legal‖ forces other than state courts such as religious leaders, family and community elders to achieve a holistic picture of the situation on
47Duruma and Digo are indigenous Coastal communities many of whom are devout Muslims. 84 the ground concerning women‘s participation in formal peace processes.
The third theme is on the politics of representation, which captures findings of research questions 1, 4 and 5. As already discussed, I used the theories of power and intersectionality to analyse the dynamics involved in representation of women within the TJRC. Under this theme, I found the case selection criteria, which constituted informal institutional rules, emerged as a key dimension for analysis. To a large extent, the process of selection of window casesdepicted hidden power behind the scenes, which negatively affect women‘s participation in public individual hearings. Under this theme, I inevitably analysed the data on the intersectionality of ethinicity, class, gender and political affiliation in relation to women‘s participation in the TJRC. The grounded dimensional analysis revealed that to deeply understand the politics of representation there is a need to deconstruct the notion of ―women‖ based on their identitiesi.e. ethnicity, religion, class, age, urban-rural divide, women with disability, women survivors of violence.
4.1.3 Case Study Approach
Yin defines a case study as an empirical inquiry that:
Investigates a contemporary phenomenon within its real-life context; when
The boundaries between phenomenon and context are not clearly evident; and in
which
Multiple sources of evidence are used (Yin 1988:23)
The ―case‖ refers to the situation, individual, group, organisation, programme, service or anything else that the researcher expresses interest, in its own right and taking into account its context (Robson 2002:180).48
48 Miles and Huberman argue that in some situations, the term ―site‖ would be preferable than ―case‖ as the latter 85 The case study approach was apt to study the power dynamics involved in women‘s participation in truth commissions. Such a goal could only be achieved through an in-depth empirical study that investigates the processes of a truth commission as it unfolds and the nature and level of women‘s participation. Yin asserts that case studies are the preferred strategy when ―how‖ or ―why‖ questions are being posed, when the investigator has little control over events and when the focus is on a contemporary phenomenon within some real- life context (Yin 1988:1). It is usually descriptive and may explore specific issues or can be used to test theory. The present study sought to answer questions why women‘s participation in the TJRC was limited despite laws to enhance their involvement, how women participated in TJRC processes and how the TJRC applied a gender perspective to its processes. These
―how‖ and ―why‖ research questions could only be appropriately answered through a case study approach.
Through the case study approach, the deeply rooted complexities in women‘s lives were revealed. These dynamics involved the interplay of normative systems and law, the hidden power in the case selection processes and the informal rules of the game that characterised the
TJRC process. The case study approach enabled an up-close and candid investigation that would otherwise not have been possible with any other qualitative research study approach.
Hakim details types of case study research (Hakim 1987:65-72).49 The present research was a case study of women as asocial group, which describes and analyses their relationships with the TJRC and the impact of normative systems such as family, religion and culture on their
always occurs in a specified social and physical setting; individual cases though cannot be studied outside their context in any qualitative research (Miles and Huberman 1994:27).
49Additionally, Hakim describes the other types of case studies: Individual case study which is a detailed account of one person that focuses on contextual factors, perceptions, antecedents, attitudes etc prior to the outcome. This type of case study is used to explore the possible causes, factors, processes and experiences that contribute to the outcome; Set of individual case studies: which is a detailed account of a small number of individuals with common features. It explores the causes, factors, experiences and process that contribute to the common outcome of the individuals; and Studies of events, roles and relationships whose focus is on a specific event for any of the aforementioned purposes. It overlaps with studies of social group and community. It may also include studies of the relationships between police-citizen, court-citizen; specific incidents e.g. disasters etc.
86 participation in the TJRC. The case study was on the community in Mombasa County which describes the patterns of women‘s participation and the interactions between community life and political processes such as the TJRC Finally, since the TJRC was at the centre of this research, the case study approach involved a description of the TJRC focusing on the implementation of its processes and the interplay of its legal mandate and women‘s lived realities.
Just like in other research strategies, there were limitations in using the case study approach.50
Firstly, the study was limited to a particular community and hence the dynamics within that particular context may not necessarily be experienced in other regions in Kenya and or the worldwide. Due to the unique dynamics of the community in focus, then the complexities in engaging women in the TJRC may differ from one community set up to another. In any event, the overall goal of the study was to understand more deeply the dynamics and complexities in engaging women in the TJRC in a special context such as Mombasa County. The aim of the research was not to mirror the experiences of Mombasa County with the TJRC to other regions. It is in fact the uniqueness of the context that makes the study herein richer and deeper in seeking answers to women‘s inactive participation in truth commissions.
There are multiple sources of data collection when using case study approach e.g. documents, interviews, observations, records etc.51 The study herein uses the research methods such as interviews, observations, records and focus group discussions within the ―case‖ area. In the present study, data was analysed on the basis of themes that arose, description on the nature of women‘s participation in the TJRC and finally assertions from women as victims, as
Commissioners of the TJRC and as participants.
50 Robson argues that criticisms directed towards the case study stems from the deficiencies and sloppiness ofparticular case study research rather than the strategy itself (Robson 2002:180). Bromley adds that ―case studies are sometimes carried out in a sloppy, perfunctory, and incompetent manner and sometimes even in a corrupt, dishonest way‖ (Bromley 1986: xiii).
51Case study approach can include collection of quantitative data although in most instances qualitative data is gathered (Robson 2002:179 citing Yin 1994). 87
4.1.4 Ethnographic Approach
In ethnography, the focus of the research is on describing and interpreting a specific cultural and social structure of a social group.52 As in an ethnographic study, at the heart of this study were the socio-economic and cultural politics around women‘s participation in the TJRC. In this research, I applied both the grounded theory and case study approaches ethnographically.
While an ethnographic approach is a distinct approach, it can be merged with either the case study or grounded theory approaches (Robson 2002:190 citing Atkinson and Hammersley
1994).
The main reason underlying the use of ethnography in consonance with the case study and grounded theory approaches was the need of anin-depth description of the nature and level of participation to reveal the complexities that women face engaging truth commissions. An ethnography produces a ―thick description‖ that allows others to understand from the inside in terms of what the researched themselves used to describe what was going on (Robson
2002:186 citing Geertz 1973). The ethnographic approach is particularly useful if one is carrying out an ―insider research‖ (Robson 2002:188). The value behind this aspect is that it dispels any prejudices and erroneous presumptions about the socio-cultural politics of a particular group (Robson 2002:186).
The ethnographic study involves the immersion of the researcher into the ―studied community‖ so that they can be described in detail. The researcher becomes an accepted member of the group, including participating in the cultural life and practices (Robson
2002:186). As a native of Mombasa County, I was immersed into the society. Also asan
52Robson notes that anthropologists used ethnography to focus on exotic cultures (Robson 2002:186).Whilst sociologists and social researchers adapted it to look at groups and communities in modern urban societies and other forms of social science studies (Robson 2002:186 citing Bogdan and Biklen 1992, Atkinson and Hammersley 1994, Fortier 1998 and Foster 1995; Robson 2002:85, 86).
88 employee of a non-governmental organisation (NGO) working extensively in the region, building relationships with the members of the community and other civil society organisations including the TJRC was not difficult. In fact, prior to the commencement of the study, I had already entered into working relationships with the key informants of the study through implementation of various programmatic activities. I became well acquainted with most victims‘ groups in the area, civil society organisations, members of district peace committees and some staff of the TJRC national and regional offices. Through my formal and informal interactions with ―the researched‖, I entered into personal and professional relationships with them. Due to this intimate understanding of the researched, having spent an extensive period of time in the field, I truly grasped the lived experiences of people from their point of view.
The ―researched‖ were able to distinguish the many hats that I wore in my interactions with them. For instance in interactions with victims, it was made clear from the onset that I was conducting a study, the purpose of the study and the possible outcomes of the study.
Nonetheless, I did not hesitate to wear my ―NGO worker hat‖ whenever the victims needed legal or technical assistance as related to their situations and make linkages to key institutions that could assist them in some of their day to day problems. My role as an NGO worker proved very useful in securing interviews with officers in the TJRC regional and national office. At the time of undertaking the study, the NGO was implementing a project on increasing public participation in the TJRC and monitoring its processes within the Coast region. Consequently, a number of the programmatic activities required the direct participation of the TJRC regional office staff. Due to limited funding, the TJRC regional office utilised the invited spaces provided by my employer NGO to increase awareness around its processes. As a result, this mutual assistance and close interaction with the TJRC laid the basis for an insider perspective. Furthermore, it eased the logistical hurdles in interviewing TJRC staff at regional and national levels. Sometimes interviews for particular
89 staff were conducted more than once due to staff changes and for updates for an unfolding process during the field research. Some TJRC staff were ready and willing to give in-depth interviews due to the working relationship they had with the NGO that I worked in.
In an ethnographic study, field-work is conducted during an extensive period of time. The research was carried out intermittently throughout the period starting 2010 to 2013. Intensive research was undertaken from September to November 2010 and January to February 2012 when the TJRC conducted its statement taking and public hearings processes respectively.
The data collection methods closely associated with the ethnographic approach would ordinarily be participant observation and interviews during an extended time in the field. On the participant observation method, the researcher may opt to take one of the many different roles of an observer. I played the roles of marginal participant,participant as observer and observer as participant depending on the circumstances.53
The ethnographic approach has also been critiqued. Robson warns of the dangers of researchers getting over-immersed with the researched as it may alter the natural environment and compromise the quality of the research (Robson 2002:186). Some participants as observers have noted that that this role may disturb the natural setting of the event being observed (Robson 2002:317 citing Whyte 1984). According to Davidson and Layder, the only way to truly understand the lived realities of people from their point of view, is by the researcher entering into relationships with them hence disturbing the natural setting (Davidson and Layder 1994:165). They argue that the altering of the natural setting is an unavoidable consequence of getting involved in people‘s lives in this manner. Consequently, the ethnographer must also assess the effects of one‘s presence.
Secondly, researchers are known to ―go native‖ resulting in them either discontinuing the study or moving from the role of the researcher to that of advocate. Being already a native, I
53Gold describes the observer as participant role as one whereby the observer takes no part in the activity but whose status as researcher is known to the participants (Robson 2002:319 citing Gold 1958). 90 sometimes moved from being just a researcher to being an advocate seeking to find legal solutions for victims of violence. For instance in a focus group discussion to seek answers as to whether victims were aware of the contents of the final report of the TJRC, I suggested ways in which the victims‘ group could advocate for implementation of the recommendations affecting them that had surpassed the time period for realisation.
The other criticism about ethnographical studies is that in as much as they are aimed at digging deeper into socio-cultural way of life, people construct this socio-cultural world through their own interpretations of it and actions based on those interpretations (Hammersley
1992:44). Consequently, the phenomenon studied cannot be independent or distinguishable from my interpretations of the actions of the players.
4.2 Research Methods
The choice of research methods was influenced by the qualitative methodological approaches toprovide deeper insight and understanding of the interplay of law, policy and women‘s lived realities. Through these methods, I studied all elements present in a setting; people were the primary data gathering instruments (Tsanga 2003:41).The respondents were informed of the nature of the research and the possible outcome prior to the interviews and or focus groups.
The research did not use an informed consent form for respondents due to the sensitivity of the topic. The use of a signed informed consent form may haveinvariably given rise to a legal obligation to disclose all the research information; verbal consent was obtained from the respondents (Robson 2002:68).
I refrained from taking pictures of respondents during in-depth interviews or focus groups to safeguard the identity of the victims and witnesses of the TJRC. To maintain their confidentiality, the names and contacts of the respondents are not published in the thesis.
Further, the respondents chose their preferred venue for the in-depth interviews and focus groups. Mostly, the victims‘ groups preferred to meet within church premises or chiefs‘ office
91 grounds. NGO officers preferred to meet in their offices.
The following were the research methods used:
4.2.1 In-Depth Interviews
The main method of data collection utilized was in-depth interviews. These interviews were semi-structured to ensure that only relevant issues were thoroughly explored. Prior to each interview session, I gave introductory comments explaining the nature and purpose of the research project. In addition, I introduced myself as a PhD candidate and officer from a local
NGO. All respondents were informed that I was not an employee of the TJRC. Respondents were assured that they would remain anonymous in written reports. An interview guide was in
English and Swahili drafted which kept the session focused, in-depth and purposeful.
Respondents were encouraged to diverge into emerging themes that bring out additional insights and information. Most interview sessions ended up being heart to heart conversations with respondents. This left room to uncover personal and social context of beliefs and feelings on women‘s participation, choice and nature of reparations, normative systems, the TJRC process as the vehicle for peace and reconciliation and enhance deeper interactions between researcher and the respondents.
The interview sessions with victims of violence were particularly challenging. In as much as I wanted such respondents to talk openly about their life experiences, there were concerns of re- traumatisation. Sometimes the women victims would become emotional during the interviews. Other times, even after probing, they would not disclose the full extent of the injustices that they had suffered.
Scheduling interview appointments with key informants proved difficult as some were too busy. Securing interviews with the commissioners was particularly challenging due to their schedules. The international commissioners travelled in and out of the country. Consequently,
92 the interview guide was converted into a ―questionnaire‖ to reach commissioners outside the country. Holding a completely private interview was not always possible. At times there were several interruptions ruining the flow of the interview and lack of privacy e.g. an interview with a TJRC commissioner was interrupted by an official telephone calls and notifications from her personal assistant.
The length of the interviews generally lasted between one hour and a half to two hours due to the detailed nature of data that was being investigated. Obviously, this research method proved time consuming. I sought to terminate the interviews on schedule by restricting myself to the most important lines of questioning. Other times, it was the respondents who so willingly shared so much information lengthening the interview sessions. Interestingly, most respondents divulged more significant and revealing information after the interview had officially concluded and during informal conversations. These conversations were also recorded. For instance, a TJRC officer intimated that there were divisions amongst the
Kenyan commissioners that stemmed from political alliances that also made it difficult for staff to relate to them. Other insider politics within the TJRC were revealed during informal conversations e.g. financial constraints that had resulted in low morale amongst staff and limitation of their work.
This research method was effective as first hand information and clarifications from the respondents were received. Through this research method, I got a glimpse into their lived realities in the interactions between law, policy and people. This research method provided insights into the injustices that women victims experienced, their needs and concerns and personal interaction with the TJRC. I specifically used this research method to find answers to the research questions concerning the adequacy of international and national laws and policies in ensuring women‘s participation, impact of normative systems on women‘s participation in the TJRC and women‘s expectations of the TJRC process including their priority needs and concerns.
93 These research questions required in depth information and detailed accounts on the experiences of women, TJRC and NGO officers, donor agencies etc which could only be shed through an in-depth interview with the key informants.
Sometimes the line of enquiry was modified to follow up interesting responses and investigate underlying motives using face-to-face interviews (Robson 2002:272). One interesting response that I picked up during in-depth interviews with the TJRC staff was the politics of representation during selection of witnesses for the public individual hearings. Throughout the interview session, I took full record of the interview. Writing notes in interview sessions with victims was found to be insensitive. In many instances, a voice recorder, with the consent of the respondent, was used during the course of the interview. Alternatively, I noted their accounts in the field diary after interviews.Voice recordings were transcribed and entered in the field diary.
A total of forty-eight (48) in-depth interviews were conducted in the course of the research period. Of these twenty-six (26) were female respondents and twenty-two (22) male respondents. Some interviews were carried out informally during the course of ordinary
0% 0% Victims/Witnesses of TJRC 6% 6% TJRC Commissioners and Officers 38% Male 13% Donor Agencies 46% Female 4% NGO Officers 54% State Agencies
33% Other
DiagramDiagram 3: 3: Sex Sex Disaggregated Disaggregated Data Data of of Diagram 4:4: Catergories of Respondents Interviewed RespondentsRespondents Interviewed Interviewed
94 conversation. These interviews produced rich data from respondents sufficient to reach saturation level.54
4.2.2 Focus Group Discussions
Focus groups are ―group interviews‖ employed to collect the thoughts and comments of respondents on transitional justice, truth seeking processes, women‘s participation in the
TJRC and victims‘ views on the final report (Robson 2002:285). As in-depth interviews, introductory comments were made on the nature of the research project and my professional background at the beginning of every focus group. A focus group interview guide was developed to steer the discussions. Respondents were encouraged to contribute by informing them that there were no right or wrong answers.
Focus group discussions provided an opportunity to engage women and members of the community in their own analysis of women‘s participation in the TJRC, the underlying causes of political violence and generate interesting discussion on the gender dynamics of reconciliation and reparations.
In focus groups with victims, it was noted that victims also had encountered many
―investigators‖ seeking to understand the extent of their suffering. Consequently, they sometimes were unable to distinguish the different actors e.g. TJRC and ICC field officers.
Many of these investigators raised expectations amongst victims that they would receive assistance yet to no avail. Some victims‘ groups used these fora as money making ventures.
For instance prior to the first focus group with victims of the 2007-2008 post-election violence, the chairlady asked me how much moneythey would be paid to compensate fortheir
54Morse asserts that other factors to be considered before reaching saturation level include the scope of the study and nature of the topic. In the former, a narrower study with more focus will take shorter time to reach saturation point whilst a simple and clear topic will require fewer participants as opposed to a more complex and sensitive topic (Morse 2000:4). After consideration of these factors, approximately thirty to fifty interviews are required for ethnographic and grounded theory studies, which is within this study‘s participants (Morse 1994:3).
95 time. Therefore, I gave nominal transport reimbursement and refreshments to the participants of the focus groups. For some participants, the transport reimbursement was inadequate and they insisted on the meetings being kept short. For other participants, the reimbursement motivated them to participatein the focus groups.
In two focus groups, respondents asked what they were going to gain from the discussion.
The question stemmed from the fact that the participants were indigent and felt exploited by previous researchers from whom their painful life experiences were extracted only to get
―nothing‖ in return. It was explained to the participants of the focus groups that the research was academic and the most that would emerge from the study was an influence to law and policy that can respond to their needs as women. The leaders of the victims‘ groups who identified the participants of the focus groups stepped in to emphasize the importance of sharing ideas. Their interventions quelled the negative sentiments of the participants.
A total of six (6) focus groupswere held in Likoni, Mshomoroni, Mikindani and
Bamburiwithin Mombasa County.55 The Bamburi focus group involved mixed sexes and comprised 18 participants. I also conducted two other mixed sexes focus group discussions in
Likoni involving victims of the 1992 and 1997 political violence. The three (3) women‘s only focus group discussions each comprised ten women. A total of sixty-one (61) participants were reached through the focus group discussions. Fifty (50) of these participants were women and eleven (11) were men. In focus groups that involved mixed sexes, majority of the women were silent hence the presence of women‘s only groups.
During sifting and analysing data, it was found that focus groups could not be conducted in isolation to uncover the lived realities of women. Most women could not share intimate details of the human rights violations that they had suffered during the violence within a focus group. Hence I documented accounts of selected women victims of violence, which I
55The Likoni focus group discussions (FGDs) were held in LICODEP community based organisation grounds and Consolata Catholic Church, Changamwe FGD was held in Holy Cross Catholic Church in Chaani and Bamburi and Mshomoroni FGDs were held at the Junda Assistant Chief‘s camp. 96 providedinsights and rich data into the injustices, priority concerns and personal interactions with the TJRC.
The focus group discussions included awareness raising on the TJRC as most women did not know its functions, powers and mandate. After submission of the TJRC final report, the victims‘ views on the suitability of proposed recommendations were collected during the focus groups. For a meaningful discussion, it was necessary to highlight the recommendations of the TJRC and its role in transitional justice. The use of this method was helpful in gathering data on collective attitudes and views on ethnicity, reparations and politics of representation. It was important to collect information on the religion ascribed and ethnic community of the respondents. The relevance of religion, ethnicity and age finds its basis in the intersectionality of these concepts that was found to have an impact on participation and representation politics.
40
35
30 18% 25 Unknown Female 20 30-35 yrs Male 15 36 yrs <
10 60 yrs< 82% 5
0 Female Male
DiagramDiagram 5:5:Sex Sex DisaggregatedDisaggregated DataData ofof DiagramDiagram 66:: AgeAge ofof RespondentsRespondents inin Focusfocus groups.Groups FocucFocus Groups Women‘s multiple identities were embedded in their religion and ethnicity. Debates concerning ethnic discrimination involving indigenous Coastal and migrant communities became very heated and emotional e.g. the Changamwe focus group was embittered by ethnic discrimination in Mombasa County which they claimed targeted the Kikuyu community.
These views did not prominently feature in the Likoni focus group convened by a community
97 worker belonging to an indigenous Coastal community. Others raised general consensus e.g. reparations for human rights violations was imperative for peace and justice to prevail.
Each focus group had approximately 10-20 participants who were selected by ―the gatekeeper‖ based on my criteria. The criteria for selection of the participants was based on gender, victims of electoral violence and place of residence i.e. Mombasa County. The problem faced in utilising this method is that some gatekeepers would not follow the criteria for selection of participants. For example in the Changamwe focus group discussion, the contact person selected women from Likoni areas who had already participated in a focus group discussion the previous week. To overcome this hurdle, I conducted in-depth interviews with the Likoni women. In addition, once the discussions began I realised that the issues from Changamwe constituency were similar to those raised in Likoni.
Since the sessions lasted only two hours, it was sometimes not possible to cover all the questions in the group interview guide. Some focus groups had one or two persons dominate the discussions. To circumvent this problem, I sought further comments from other participants by redirecting the questions. Lastly, I played both the role of moderator and rapporteur of the discussions when I was unable to find a reliable research assistant to take notes.
35% Upcountry Coast 65%
Diagram 7: Ethnic affiliation of Victims of Violence Interviewed
98 30%
Christian Muslim
70%
Diagram 8: Religious affiliation of Victims of Political Violence 4.2.3 Observation
I anticipated playing the role of an observer of public hearings of the TJRC and other social interactions between women and men and women and the Commission in Mombasa. By the end of field-work, I had observed the public, women‘s only and thematic hearings of the
TJRC in Mombasa, Kilifi, Kwale and Nairobi counties.56
At the beginning, the observational approach of public hearings, reconciliation forum and other TJRC convened meetings were expected to be unobtrusive observation.57However, as the public hearings of the TJRC approached, I strategically requested to implement the project activities concerning monitoring of and public participation in the TJRC processes in my place of employment. Consequently, my role as an NGO officer changed the observation style from unobtrusive to participant observation taking up the roles of marginal participant, observer as participant or participant as observer.58
During the course of the public and women‘s only hearings, the marginal participant role was
56The individual and women‘s hearings that I attended were in Mombasa, Kwale and Kilifi counties. The thematic hearing on women was conducted in Nairobi. 57Unobtrusive observation is defined as being non-participatory in the interests of being non-reactive (Robson 2002:310). 58The key feature of participant observation is that the observer seeks to become some kind of member of the observed group (Robson 2002:314). The participant observer not only gains physical presence and shares in the life experiences of the observed group, but also enters into their social and symbolic world through learning the social conventions, habits, language and non-verbal communication (Robson 2002:314). The participant observer also establishes a role within the group.
99 played. This is done by adopting a passive but accepted participant role e.g. a member of the audience.59The marginal participant role was particularly useful to deduce the informal rules of the game of the TJRC processes as relates to participation in invited spaces. I uncovered the biasness that shrouded the otherwise informal, unwritten rules on selection of witnesses for the hearings. As an unthreatening member of the audience, I evaluated the law vis a‘ vis lived realities of women‘s participation in the TJRC. In addition, the marginal participant role was suited in uncovering the reality of the manisfestations of visible power, hidden power and invisible power exerted by actors within and without institutions such as the TJRC. The intricacies of case selection only came to my attention through intimate relationships with key informants who shared these informal rules during our informal conversations. The revelation of the case selection process emerged as an informal rule of the TJRC that led to disqualification of ―cases‖, mostly involving women, from the list of cases that were formally heard in the public hearing sessions.
Zeisel warns against presuppositions that whilst a researcher knows the role they play e.g. in the audience, the others come to the same conclusion (Zeisel 1984:119). 60 Whilst it may be true that some members of the audience may not have known that the role I played was that of a researcher, the information on my research was revealed to the key informants, more specifically staff, Commissioners and some victims/witnesses of the TJRC that I interacted with during the in-depth interviews.
I also played the role of observer as participant where by virtue of my employment in a legal organisation I advised victims or witnesses on how the processes of the TJRC. I monitored the TJRC hearings and participated in workshops on the TJRC processes e.g.
59Robson argues that some marginal roles are difficult to distinguish from the role of complete observer e.g. where a researcher does not take part in the activity and whose status is unknown to the participants (Robson 2002:319).
60Zeisel uses the example of a marginal observer who while watching an informal football game in the part assumes that he is perceived to be a casual spectator; the football players instead think she is a park attendant about to inform them to stop playing on the grass. 100 reconciliation forum, consultative meeting with district peace committees, women‘s meeting on TJRC etc. As Robson hence argues, the researcher in these instances then ceased to be merely a researcher and is transformed into a participant. An observer as participant does not take part in the activity but her status as researcher is known to the participants (Robson
2002:319 citing Gold 1958). The researcher becomes one of the roles within the larger group.
Lastly, I played the role of a participant as observer. In this dual role, the observer status is made clear to the researched from the onset (Robson 2002:317). My role as researcher and observer was made clear to the victims‘ groups and TJRC officers with whom I had interactions. I developed close relationships with some members of these groups, took part in their activities and sought explanations from members on what may be going on. As participant as observer, it became fairly easy to secure interviews with staff at the helm of the
TJRC organogram e.g. the Chief Executive Officer and Commissioners. Through relationships I made with the researched, I was provided significant information on the insider intricacies of the TJRC and also victims‘ groups; in other words, the insider politics of the
TJRC and victims‘ groups that are silenced in public spaces. Having an insider perspective was important in understanding and revealing the overall complexities for women‘s participation in the TJRC. In addition, the TJRC regional office staff sent me alerts and invitations to local activities both in my capacity as NGO worker and researcher e.g. focus group discussion on economic marginalisation, meeting with county peace committees on reconciliation, regional reconciliation dialogue, TJRC awareness meeting with advocates etc.
Such information helped me remain abreast of the unfolding TJRC process.
This method was utilised to add value and give a background perspective to information acquired through other methods. It was however problematic because there was the danger of drawing wrong inferences from observed events. Such data was thereafter triangulated with in-depth interviews or focus groups with women victims, social workers, NGO and TJRC officers. To add form and precision in the data, I posed questions about the situation under
101 enquiry whether to oneself, focus group or interviewees.
Some of the in-depth interviews and group discussions were inordinately delayed hence I took such opportunities to observe surroundings such as TJRC offices, government and NGO offices and being briefed. Some briefings provided valuable insights into the situation. To record participant observation, I mostly used a notebook computer to produce field records.
The notes were very detailed and descriptive leaving nothing to chance as every dimension built up the theory.
4.2.4 Secondary Data Sources
The TJRC processes were highlighted by the media. Media reports were crucial to monitor the
TJRC, how it is reported and possible influence in the nature of women‘s. Newspaper cuttings were collected. Library and internet sources also played an important role to provide background information on the gender perspectives of transitional justice, initiatives made and the TJRC process. Internet sources through Google Scholar, journal articles and relevant websites on truth commissions were useful.
Policy documents, past commission reports, TJRC related workshop reports and periodic reports and newsletters were sampled in relation to their relevance in dealing with underlying causes of violence. I also perused the Waki Commission Report, Akiwumi Commission
Report, Kiliku Parliamentary Select Committee Report and Africa Watch Reports that documented political violence in Kenya. The court records sampled involved the decisions of the court on the suitability of the Chairperson of the TJRC to hold office. In the course of interview with victims, it was found that a majority of them had neither recorded statements with the police nor were criminal charges pressed against the suspects by the police.
Consequently, there were no court records on crimes during political violence for perusal.
102 The difficulty in using this research method is that some documents did not provide pertinent information, which was required to answer most of the research questions. For instance, TJRC periodic reports on its processes did not provide details of all witnesses who testified during the hearings. The reports highlighted on few cases that were ―sensational‖, ―window cases‖ or trendsetters. This information hence required triangulation through interviews with TJRC officers, victims and NGO officers. Also, some TJRC documents were labelled private and confidential hence restricting their perusal e.g. completed statements forms, the Gender
Policy, Reparations Policy of the TJRC.
4.3 Conclusion
Due to the interconnectedness of the qualitative research methodologies, the study seamlessly employed all the approaches that were essential for investigating an ongoing process.
Consequently, the study applied grounded theory, case study and ethnographic approaches in the data collection. These methodologies informed the choice of research methods that would help understand the complexities around women‘s engagement in truth commission processes.The study utilised in-depth interviews, focus group discussions and observation.
These primary data collection methods were supplemented by secondary sources obtained through the internet and library. The research methodology framework was mainly limited by geographical scope. The following chapter then analyses the research findings.
103 CHAPTER FIVE: THE DYNAMICS OF WOMEN’S PARTICIPATION IN THE TJRC USING MOMBASA COUNTY AS A CASE STUDY
1.0 INTRODUCTION
This chapter discusses the findings made with respect to the two emerging themes of this study namely:
The level and nature of women‘s participation in the TJRC;
The legal language of the mandate of the TJRC;
The findings under these two thematic headings are closely intertwined and interconnected. In the first theme, I discuss how women were engaged in the different spaces of participation within the TJRC more specifically the civic education, statement taking, public individual and women‘s only hearings spaces. The findings uncover the power dynamics and dimensions within the spaces of participation, the barriers for meaningful participation of women and whether indeed theirneeds and concerns were well articulated in the debate on reconciliation and reparations.I analyse each space and the nature of women‘s participation drawing on the analytical underpinnings of Arnstein‘s ladder of participation and Gaventa‘s theory of power.The experiences of women‘s participation in the SA TRC and the Peruvian CVR are compared and contrasted with those of the Kenyan TJRC.
Under the second theme, I discuss and analyse the impact of law in furthering or limiting women‘s participation in the TJRC process. In this theme, I examine the manner in which the constitutive law of the TJRC is constructed, interpreted and its adequacy in addressing the needs of women within its processes. I comparatively analyze the legal mandate of the SA
TRC and Peruvian CVR and the departures and or similarities with the legal mandate of the
Kenyan TJRC. The term ―law‖ is conceptualised very broadly to include normative systems that generate and uphold informal rules and the impact they may have on women‘s
104 participation in formal peace processes such as the TJRC.Consequently, under this theme, I unpack the semi-autonomous social fields and its interplay with the law in mainly limiting women‘s participation in truth-telling processes.
5.1 The Nature and Level of Women’s Participation
The definition of the term ―participation‖ is as contested as is its manifestation. The World
Bank defines ―participation‖ as ―a process through which stakeholders influence and share control over development initiatives and the decisions and resources which affect them‖
(World Bank 1994). Patwary adds that participation is a process where local people have roles and participate in all the stages of development (Patwary 2009: 113).
Oliphant problematises whether participation is a means to an end, or is an end in itself or merely a matter of principle or practice (Oliphant 1999 cited in Patwary 2009:115).
Participation as an end refers to the process which is created and moulded by participants and through which confidence, influence and involvement amongst local people is built (Nikkhah and Redzuan 2009:172, 173). It is an active form of participation that responds to local needs and changing circumstances. On the other hand, participation as a means refers to using participation to achieve a particular objective or goal (Nikkhah and Redzuan 2009:172).
Emphasis is placed on reaching predetermined targets than the act of participation itself. For participation to be effective, it must be viewed as an end rather than a means. The involvement of individuals and or groups in sharing control with state or non-state actors in the design, implementation and decision-making in matters directly or indirectly affecting them are fundamental ingredients in such processes.
In this case of the TJRC, the act of participation would involve extensively engaging women in the design of policies of the Commission and allowing them to mould and or influence the direction and implementation of the truth telling process. This form of participation would
105 involve applying a gender perspective throughout the life of the TJRC; the end result would be the TJRC responding to the local needs of women.
Women‘s participation within the TJRC ought to begin at the inception stage of the
Commission running through to its final stage of report writing and compilation. In the South
African case, the gender perspective was applied after the TRC had begun it work.Early in the course of SA TRCprocesses, it wasfound that women‘s voices and experiences of apartheid were greatly under-represented. Ross analysed 204 testimonies presented during the first five weeks of the public hearings. She found that despite 60 per cent of the deponents being women, over 75 per cent of their testimonies were about abuses to men (Ross 1996:22). On the other hand, 88 per cent of men‘s testimonies were on abuses to men (Ross 1996:22). To incorporate a gender perspective, the SA TRC had to modify its procedures in a manner that would ensure women‘s experiences of human rights violations were heard and categorised in what could be investigated as stipulated in its legal mandate.
The Kenyan TJRC acknowledged, from its inception, the importance of involving women in its processes and the need to deliberately engage women in truth-telling. The then Director of
Research, Dr. Godfrey Musila, stated in an interview:
The Commission has engendered its entire process. We recognise that the historical patterns of violence in 1992, 1997 and 2007 have had gender dynamics. Hence gender just is an important component of natural justice. You can‘t have a transitional justice process where women are not involved. So from the staffing of the Commission to its processes, gender is a conscious decision. We have made a conscious decision to add women in the process.61 To some extent, the TJRC took affirmative steps to increase women‘s participation in its spaces. However, the findings of the study reveal that these spaces of participation were at their best forms of tokenism and window dressing whereby women, who are generally excluded from public spaces, remained numerically and strategically under-represented and
61 Dr Godfrey Musila worked in the TJRC secretariat as Director of Research from July to December 2010. Mr Japheth Biegon was appointed as the Director of Research from April 2011 to August 2013. I interviewed both Directors. 106 un-influential. The spaces of participation were sites of power exerted by the TJRC over women participants. The TJRC used pseudo-participatory techniques through which women were informed of the work of the Commission, consulted and or appeased to engage in the process without decision-making power or control over it. The TJRC designed and implemented its own processes without the real input of women. Further, the legal mandate of the Commission exacerbated the unresponsiveness of its processes to the priority needs and concerns of women. The participation of some women in the TJRC process was invalidated as they submitted views that were outside its legal mandate.In the sections hereunder, the spaces of participation are specifically analysed using the voices of women compiled during data collection.
5.1.1 The Invited Space of Civic Education
The Civic Education Department in the TJRC National Officedelayed in raising countrywide awareness campaigns due to insufficient financial and human resources capacity. Due to these financial challenges, the TJRC was unable to plan its activities properly resulting in inadequate civic education (TJRC Final Report 2013, 1/4:146). The Regional Office hence relied on partnerships with collaborating organizations such as Kituo Cha Sheria and FIDA
Kenya for technical expertise, resource materials and platforms with which to share its legal mandate with affected communities.
5.1.1.1 Level of Awareness on the TJRC, its Role and Mandate.
By the time, I conducted the interviews with the respondents, the TJRC had already conducted some civic education drives through its Coast Regional Office. To assess the civic education space of participation of women, I began by investigating the level of awareness of women on the TJRC. Generally, it was found that majority of the respondents did not know the functions, objectives and mandate of the TJRC. When asked about the Commission, they only regurgitated the calls for resignation of the Chairperson Amb. Kiplagat rather than the
107 spirit behind the process. In fact, prior to the hearings, only 18 percent of female respondents present in the focus group discussions were aware of the TJRC, its basic functions, mandate and objectives. Of the female victims‘ focus group discussions, only four (4) respondents, consisting of 20 per cent, were fully aware of the role of the TJRC. Their knowledge on the
TJRC had been acquired through a sensitisation workshop organized by civil society institutions named Kituo Cha Sheria and Fida Kenya. The low level of awareness concerning the mandate of the TJRC impacted on quality of participation of women in the Commission.
The Director of Civic Education shared that they had partnered with few civil society organisations in their civic education campaigns:
Actually I would say it is more goodwill than money. I will talk about civic. We have partnered with some organisations on civic education like you guys at Kituo, CJPC and Action Aid on statement taking to do for us ….IOM and DPC they supported us for work in Northern and Western Kenya. Pact Kenya and partners, Kenya Muslims Youth Alliance, GIZ, Oxfam, KNHRC, NCIC, NSC… The Commission also relied heavily on advertisement in the local dailies, audio-visual media, social media and website, brochures etc. to reach out to the public. However, these means of communication were not effective in reaching out to women who preferred social networks and grassroots means of communication e.g. through public barazas. Indeed, the Civic
Education department used public fora or barazas to create awareness on the TJRC process.
However, the Commission was only able to hold two official public barazas in Mombasa
County. Consequently, fewer women could be reached through its civic education campaigns.
The civic education drives were held in Changamwe and Mvita constituencies in Mombasa just prior to the public individual hearings. The turnout was immense with over two hundred
(200) participants.
The Director of Civic Education, Mr Elijah Letangule, shared that the civic education sessions would ordinarily take around two (2) hours. Despite Mombasa being a Muslim dominated area, Mr. Letangule confirmed that to their surprise grassroots women comprised seventy percent of the participants in the barazas. The large number of women confirmed that public
108 barazasthrough local networks reached more women. The content of the civic education drives, venue and time was determined by the Commission. The public, in this case mainly women, had no power to determine the content of the sessions except in the question and answer session which had to be informed by the training offered. The Director of Civic
Education explained the content of the civic education drives:
After the initial protocols, we discuss the mandate of the Commission, then we talk about the work plan of the Commission that is the first exercise is gathering information: memoranda, statements, individual hearings which we have seen taking place in Wajir, Kajiado and then Coast … then we will have the thematic as well as the institutional hearings. Then Chapter three of our workshop involves report and implementation. In the report we have the writing of report, releasing of report and implementation and then we go to plenary on the mandate, work plan, statement taking, memorandum, report writing. So those are the three key areas: one gathering of information, two hearings and three report and implementation. During plenary session at the end people are able to ask questions on all the mandate of the Commission, then finally plenary. Through the civic education drives, the TJRC viewed participation from the point of view of
―what the law says‖ or ―what human rights say‖ on the Commission‘s processes. The civic education drives were not aimed at raising the consciousness of women as integral participants in the truth-telling process and the manner in which their realities could be positively transformed through a proposed reparative framework (VeneKlasen et al 2004:8).
The civic education drives did not emphasize on defining, claiming and advancing the right for women‘s participation in peace and reconciliation processes. Rather than focusing on a lopsided legal mandate and its work plan, the TJRC would have been themed around ―power to‖ and ―power within‖ women by enhancing their capabilities to shape their own lives and world through the truth-telling process.
With the numbers of the public being on average over one hundred in these civic education drives, the question emerges of whether the sessions were adequate to increase the understanding of the role of truth commission. The Director concerned expressed the challenges:
109 Mostly we have had an average of 200 people attending these sessions. 100, 200 or say 80. Okay, normally we target 50 for quality but people just somehow I don‘t know how end up getting 80 and above. Actually we advertise for the forum though; okay we have some guidelines. Basically we need to have the stakeholders, like now Kituo if you guys are around we invite you. And the other groups, the small ones like community based organisations [CBOs]. There is low probability that the women participants of these civic education drives actually comprehended the complex, legal TJRC processes within the short span of time. The lack of proper understanding of the structure, mandate and processes of the TJRC had a clear impact on the empowerment of women to contribute positively and meaningfully in the Commission.
The voices of women in the spaces of the public hearings confirm that the civic education space was flawed on account of the Commission itself.
Foucault argues that power is everywhere and exemplified in discourse, knowledge and
―regimes of truth‖ (Foucault 1998:63). He argues that power is an everyday, socialised and embodied phenomenon. The concept of power was embodied and manifested in the space of civic education with the TJRC exercising ―power over‖ women who were invited to that space through the extent of information sharing, timing of civic education drives, content of civic education and sitting arrangement during the drives. By being the only actor in decision- making around the form, content and scope of civic education drives, the Commission maintained ―power over‖ the women and men in general. The dimension of ―power over‖ that best describes the Commission‘s form of civic education is hidden power whereby the
TJRC extends its power of control by determining which issues can be discussed and which issues are to be excluded (Lukes 2005:22). Furthermore, the sitting arrangement adopted by the TJRC involved a classroom set up whereby the staff of the commission would play the role of the more powerful ―teachers‖ who would hand down information that they thought appropriate to the less powerful ―female participants‖.
110 5.1.1.2 Applying Arnstein’s Ladder of Participation to the Civic Education Space
Using Arnstein‘s Ladder of Participation, the spaces of participation within the civic education drives can be best measured as ―informing‖ and at its worst
―manipulation‖(Arnstein 1969: 217,218). Under informing, the power holder, in this case the
TJRC, provided only one-way information mostly delayed resulting to low understanding of
TJRC processes by women that would inadequately empower them to engage, input and influence the outcomes of the Commission. The one-way form of communication by the
TJRC was depicted by the extensive use of news media, pamphlets, brochures and responses to inquiries within the civic education drive that took form of information giving rather than an exchange. Furthermore, the civic education drives were conducted one month prior to the public hearings not giving ample time to women participants to distil the information and make valuable contribution in the upcoming hearings.
At its worst, the space of participation within the civic education drives can be placed at the lowest rung of the Arnstein‘s Ladder of Participation. ―Participation as manipulation‖ is illustrated by inviting the public through already established civil society networks only to sanction the processes of the Commission. The TJRC used established networks through local administration and civil society to endorse the requirement of conducting civic education under its work plan and constitutive law. The TJRC used pseudo-participatory techniques that manipulated women to do and know what they viewed as important rather than empower them and raise their consciousness in agitating for their own priority concerns. The civic education drives emphasised on the strengths of the TJRC to draw women‘s and men‘s participation; the Commission did not provide an unbiased overview of the gaps and limitations of its processes and especially as relates to women‘s needs and concerns.
Arnstein‘s Ladder of Participation,as refined by the International Association for Public
Participation, Potapchuk and Connor,theorises on the nature and extent of participation. It has
111 eight rungs divided into three broad areas: non-participation, degrees of tokenism and citizen power. The level of participation that communities should aim to attain is the highest level that is degrees of citizen power.
Diagram 9:9: Arnstein’sArnstein's Ladder of Participation (1969)
Under the category of non-participation, three rungs of manipulation, therapy and informing are described as follows:
Manipulation: it is depicted by placement of people on advisory boards just to
rubberstamp. It is involves educating people on agency and yet distorting participation
into public relations.
Therapy: it involves engaging the public in numerous activities under the guise of
their involvement in planning and decision-making. It is whereby experts subject the
participants to clinical group therapy to cure them rather than fix the original problem.
In therapy, the proposed plan is the best and the work of participation is to achieve
public support.
Informing: it is whereby one-way information is provided to the public, mostly too
late to really affect decisions and fails to achieve real input. There are many forms of
112 one-way communication e.g. news media, pamphlets, response to inquiries and
information giving rather than exchange.
The second category involves degrees of tokenism described as consultation, placation and partnerships which are defined as follows:
Consultation: it involves the public in a significant way but it is a sham if there are no
assurances that their input will be fully incorporated in the decisions or the full range
of options to be considered. It takes the forms of attitude surveys, public hearings and
neighbourhood meetings. According to Arnstein, consultation is still a window
dressing ritual (Arnstein 1969: 217,218).
Placation: it represents tokenism if those previously excluded from power remain
numerically the minorities on the board and or are not accountable to any constituency
in the community. Sometimes it also takes the form of giving the power to advice or
planning but not the actual decision-making power.
Partnership: it represents real public participation whereby the participants and the
government agree to share in planning and decision-making duties through joint
structures. Neither the partner is viewed as capable of making or changing decisions or
agreements unilaterally. The public has as much access to resources as the government
partner.
Finally, the category on degrees of citizen power involves delegated power and citizen control which are defined as follows:
Delegated power: it occurs through negotiations between the government and the
public. The public gain the dominant decision-making position on programmes that
affect them to ensure accountability.
113 Citizen control: it falls short of absolute control but the intention is that the public
have managerial and policy control and can set the conditions under which the
government can alter the institution or programme.
In conclusion, it was found that despite the civic education invited space being
numerically well represented by women through the public barazas, it was the least
empowering for women. The TJRC maintained decision-making power and control shown
by the structure, content and organisation of the civic education drives. On the other hand,
the government through its hidden power over the TJRC limited and or delayed funding to
the Commission resulting in inadequate civic education being conducted. Therefore, the
level and nature of participation in the subsequent TJRC processes were negatively
affected by a deficient civic education space.
5.1.2 The Invited Space of Statement Taking
The statement taking exercise provided another space for participation within the TJRC process. Statement taking was a key phase in the life of the Truth Commission. According to the Truth, Justice and Reconciliation (Hearing Procedure) Rules, a person is required to record a statement or submit a memorandum to the Commission to participate in the public hearings and or be eligible for reparations. Therefore for women to positively gain from the
TJRC process through their testimonies or reparations, it was imperative that they participate in the space of statement taking.
Like in the civic education space, there were deficiencies in thestatement-taking phase that undermined participation of women. Out of all the statements that the Commission collected,
114 only 38.9 per cent were from women (Kenya. TJRC 2013, 1/4: 87).62The Commission did not achieve equal participation from men and women. The Director of the Special Unit explained:
…there was also a deliberate attempt to ensure 50:50 participation of male and female statement takers. That was not achieved… As we received the statements…we realized that about 40 percent or 44 percent of the statements were from women, so not half… The completed statement forms remained confidential throughout the TJRC process. I was denied an opportunity to peruse these statements to verify the numbers, nature and patterns of violations that women reported and how they were recorded on grounds of confidentiality.
Due to delays in release of funds from the national government, which funds were insufficient, the statement-taking phase was delayed to September 2010 from its inception in
August 2009(Kenya. TJRC 2013, 1/4: 146).Again, the hidden power of the State operated in the background to stifle the effectiveness of the TJRC in execution of its legal mandate. Other factors that contributed towards the inadequacies of the statement taking process included societal patriarchal attitudes, inadequate education and rigorous technical requirements in recording statements.
5.1.2.1 The Statement Takers and their impact on Women’s Participation
In an interview with Ms. Kanyago, the Director of the Special Support Unit, the steps that the
Commission had undertaken to incorporate women into the statement taking process were stated as follows:
As part of statement taking, we trained statement takers on various issues: transitional justice, truth commissions, sexual and gender based violence, trauma and how to handle or recognise trauma as they take statements. And so as part of that, there was a focus on gender and sexual based violence in the training so that they know how to take statements from survivors of sexual and gender based violence whether men or women. The TJRC trained all its statement takers on gender and sex and gender based violence. The aim of the training was to sensitise the statement takers on transitional justice and ways to
62In total, the TJRC collected 42, 465 statements countrywide, comprising 16,503 from females and 25,811 from males (Kenya. TJRC 2013, 1/4: 87). In the Coast region, the Commission collected a total of 3547 statements consisting of 2455 from males and 1079 from females (Kenya. TJRC 2013, 1/4: 87). 115 handle victims of sex and gender based violence. I sought clarification from the Director as to the length of time the statement takers were trained. She indicated:
The statement takers‘ training was a week. There was transitional justice, human rights, gender and trauma. The training was five days. The component on gender was probably a day long. The training for statement takers lasted only one week; the gender component was one day long. Gender and sex and gender based violence are very complex topical issues that cannot be well understood in just one day. For the statement takers to adequately grasp how to handle victims of gender based violence, they would need thorough training sessions to also demystify their own personal gender biases and stereotypes. The TJRC Final Report concedes that it failed to conduct intensive trainings for its statement takers specifically on trauma management and identification (Kenya. TJRC 2013, 1/4: 146).
The majority of the statement takers were drawn from community based organisations in the region. This had an impact on the collection of statements on two grounds. Firstly, one statement taker confirmed that since his colleagues were from civil society organisations they were only able to collect statements over the weekends. Hence this limited the numbers of statements that they recorded. Secondly, the statement takers mostly had formal education ranging from secondary to diploma level. As such, one week of training on the complexity of law and transitional justice (and one day sensitisation on gender) could not effectively equip them with knowledge on truth commissions, gender and dealing with women victims of sex and gender based violence.
In selection of statement takers, the Director of Special Support Unit stated:
…there was also a deliberate attempt to ensure 50:50 participation of male and female statement takers. That was not achieved… but it was like 45: 55 representation with 45 being the women… of the 300 statement takers that we had…. Despite the deliberate approach by the TJRC to ensure gender parity in recruitment of statement takers, the Commission experienced challenges due to the gendered social context.
116 As a result, resistance to change sprung from the gendered terrain within which these legal and policy frameworks were implemented. For instance some communities declined to receive statement takers who were women causing the TJRC to increase male statement takers to document violations. In an interview, the Director of Research, Dr Musila, revealed:
Some communities have rejected female statement takers because they are women. This has been a key concern in the Coast region. In North Eastern, all statement takers were women in the 20s. The community rejected them asking for more men and preferring older women rather than young women to record their statements due to sensitivity of sharing a sexual violence case. We have dealt with these problems. The Team Leader is meant to make the necessary reshuffles so that the community remains focused. The Commission had to adjust its gender sensitive processes to accommodate patriarchal social attitudes so that their work could be executed.
5.1.2.2 Interrogating Power within the Space of Statement Taking
Spaces of participation are spaces of power and so was the invited space of statement taking.
The law and approach used to promote women‘s participation in statement taking was ineffective in transforming the social context due to the existence of invisible/internalised power. Invisible power operated to reproduce and reinforce power relations across the sexes, i.e. female and male, whereby the latter sex preserved its dominance and values irregardless of contrary approaches and law frameworks. Invisiblepower controlled and shaped the communities‘ beliefs on the inappropriateness of young women‘s participating in the public space of statement taking. It reinforced power relations within the female sex whereby older women preserved their dominance in public spaces to the exclusion of younger women.
Invisible power stemmed from the social constructs and attitudes on young women in some
Coastal communities who are regarded as immature and unsuitable to discuss sensitive and weighty issues to be addressed by the TJRC e.g. sexual violence.
Further, the initiatives to promote women‘s participation within the invited space of statement taking took place ina terrain where there are deep-seated social inequalities founded on
117 ethnicity, class, age, religion and gender. The presence of formal rules, laws and policies to encourage women‘s participation could not be expected to operate outside this social context.
The TJRC failed to anticipate that informal and unwritten rules take precedence over formal rules, laws and policies. The communities‘ informal and unwritten rules on women‘s participation operating within semi-autonomous social fields override formal law to regulate the conduct of actors such as the TJRC (Moore 1972:743). These informal, unwritten rules limited the efficacy of the law and approach by the Commission to enhance the participation of women in the TJRC processes. The informal rules were effective in maintaining power relations between women and men and between young and old women.
Lefebvre points out that social relations exist only in and through spaces. In other words, the attitudes and mind-sets about society are recreated in the maner in which spaces are organised, occupied, conceived and perceived (Cornwall 2002:6 citing Lefebvre 1991).
Consequently, prevailing or patriarchal attitudes towards excluded groups such as women could not be ignored merely by using pseudo-participatory techniques. In fact, these inequalities of status, class, sex, gender and social position are reproduced in social spaces
(Kohn 2000:424). The TJRC ought to have been alive to these complexities and respond adequately yet maintaining its gender sensitive policies and or laws.
The rejection of statement takers was not only on gender grounds. The statement takers were also rejected based on their identities e.g. victimhood. In an interview, a statement taker shared an experience in the field whereby IDPs from Mshomoroni in Mombasa County declined to record statements with him because they did not perceive him as being the proper statement taker. The statement taker stated:
The IDPs in Mshomoroni argued that they were the ones affected by violence so best suited to collect statements. Their representatives wanted to take a group statements hence refused to allow us to talk with their members. For them it was about being a beneficiary of the process. They did not want some members to benefit and others to be excluded. Yet on our part we were only allowed to take individual statements.
118 During the statement-taking phase, every statement taker was required to record only two (2) statements every day. The Coast region had a total of thirty (30) statement takers to be shared across six (6) counties.63The low number of statement-takers allocated to each county was incapable of adequately covering most of the areas. They relied on the networks of community based organisations and non-governmental organisations for linkages to victims of violence. The over-reliance on these networks caused the Commission to engage
―gatekeepers‖ rather than direct victims of gross human rights violations in these invited spaces that spoke for but not with those they claimed to represent (Cornwall 2002:8). The
Team Leader of the Mombasa County statement takers, Mr George Mlandi, shared these challenges in an interview:
At first we did not know where to go and how to find victims. Kituo Cha Sheria organised a forum,which had some post-election victims in Mombasa. This acted as our starting point. We were also linked to leaders of community based organisations, youth and women groups who were to help us identify victims. They became very difficult and insisted that we should give them money before they could take us to the victims. At the time, and even now, the Commission still did not have money to run most of its affairs. So it became impossible for us to remunerate the gatekeepers. I experienced such an incident with an organisation in Kisauni that is well known for advocating for land rights of residents of Kisauni. When we could not give them money for mobilisation they made sure no one else gave us the information we needed. Invited spaces are made available by the powerful. Interaction within these spaces is controlled by the powerful. The invited space of statement taking was highly controlled by the
TJRC, the power holder, than was the civic education space. The TJRC colonised interaction within this space through its informal, hidden and strict rules on: the completion and coding of the statement form, the restrictions on who can collect statements, the number of statements to be recorded daily and the violations to be recorded. Only TJRC insiders knew these informal rules on statement taking yet they needed to be satisfied for a statement to be admitted. The formulation of these informal yet strict rules occurred in closed spaces involving only TJRC staff and or Commissioners. This may be attributed to the fact that the
63Mombasa and Kwale counties had five statement takers each, Kilifi County and Malindi had three statement takers each, Taita-Taveta County had eight statement takers, Tana River County had four statement takers and Lamu County had two statement takers. 119 statement taking invited space was a springboard towards the overall outcome of participation within the TJRC process namely reparations. Consequently, the Commission sought to steer the direction of the statements received in an attempt to remain within its legal mandate.
Informal rules within the TJRC impacted on the viability of statements given by both male and female victims. Every written statement was to be coded with the personal number of the statement taker. Where a statement taker failed to indicate his or her personal number then the statement would be disqualified. A former statement taker with the TJRC indicated to me in an informal conversation:
Where a statement taker did not write their personal code on the statement taking form, the statement would be automatically rejected by the Commission. Some statement takers despite having been trained on this, still failed to indicate their personal identification code. I know of one statement taker in Lamu who did not include his personal number in some statements. If I had known about it I would have written my own code just to have the statement considered by the Commission. Another statement taker who was assigned to Kwale county experienced the same challenges as Mr Mlandi. He shared that to find victims of violence he worked closely with the local area chief. He said:
One goes to the area chief for a desk for people to easily reach you. We would give the chiefs and village elders money to mobilise people. Sometimes we did not have money and when we did not give them any they would not cooperate with us. We would give the chiefs Kshs 500 but they wanted Kshs 2,000 claiming they had to travel long distances to find victims. Our phone numbers were shared so that people can reach us. Some of us attended radio talk shows to create awareness on the statement taking process. There were advertisements on the newspapers on statement takers…I would stay at the chief‘s camp during the week although not permanently throughout the day. The statement takers were allowed to record statements in whichever location was most comfortable for the statement giver. Some statement takers chose the local area chief‘s office as their base. Others travelled to the rural areas, homes or even to hotels to record statements with victims. Mr Mlandi shared that the violations recorded from Mombasa County stemmed from electoral violence and ranged from sexual violence, loss of property, torture especially of former Kenya Army soldiers after the 1982 coup and land. He added that the women
120 victims that they located were always ready to record statements without any form of remuneration.
The low participation of women in the statement-taking phase was attributed by one of the statement takers to poor mobilisation. Mr Mohammed Hamisi, formerly a statement taker and at time of interview the Assistant-Regional Coordinator of TJRC Coast, stated:
Women did not participate much in statement taking because there was no partnership between the TJRC and organisations working with women...We were unable to conduct proper mobilisation of women victims. Also, women feared to come out and testify due to the nature of violations they had suffered…The women statement takers were not sensitive to women‘s issues. They recorded more statements from men than women. 5.1.2.3 The Participation Framework of Statement Taking
The Commission established a complicated framework for participation through statement taking. A lengthy statement form was formulated soliciting specific information that the
Commission required. The design of the statement form was conceptualised in invited spaces involving only the TJRC and selected stakeholders. The witnesses were never invited to participate in this stage of the design of the statement form.
As a matter of fact, the SA TRC modified a number of its statement taking process so as to ensure that women‘s experiences of human rights violations were heard, investigated and documented. The S statement form had the following note:
IMPORTANT: Some women testify about violations of human rights that happened to family members or friends, but they have also suffered abuses. Don’t forget to tell us what happened to you yourself if you were the victim of a gross human rights abuse(South Africa. TRC 1998 4/10:285).
A similar clause was incorporated in the Kenyan TJRC statement form to encourage women to record their own human rights abuses rather than those suffered by their family members. It reads as follows:
Experience shows that some people, especially women, testify about violations of human rights that happened to family members or friends, but they are less willing to speak of
121 their own suffering. Please don’t forget to tell us what happened to you yourself if you were the victim of a gross human rights abuse. The statement form defined gross violations of human rights, the objectives of the TJRC and outlined important issues for the statement giver to note. Thereafter, the statement form required the statement giver to provide personal details, sign a release form committing oneself to handing over documentation in support of the ―case‖, sign a declaration that the information being given to the Commission is true and correct, the nature of violation i.e. if socio-economic rights and or civil and political rights, how it occurred and whether there was any action taken, known details of the perpetrators i.e. whether private or state agents, location of perpetrators and whether the statement giver would wish to encounter perpetrator, specify witnesses to the violation and their contacts, consequences or impact of the violation on the statement giver e.g. nature of harm, how harm was addressed, effect of harm etc. outline previous interventions and actions taken and expectations (or proposed recommendations) of statement giver at individual, community and national levels.
Mr Hamisi, a statement taker, described the statement form as a guiding tool. He revealed that the Commission also had an established structure for compiling a memorandum. In his words on the statement taking:
They [statement givers] were to attach documents to the form e.g. title deeds, letters etc. They were to give dates of violations, documents from the police, health documents, allotment letters to add value to what they were reporting. We only took copies of these documents. If the person did not have documents to support their case they would sign the commitment section that said that they were stating the truth. The statement taker signed the statement form as a witness. The statement giver also had to sign the statement form. (Emphasis added) From the above interview, the value of a statement giver‘s story depended on the documentation submitted in support of their ―case‖. The requirement of evidence to prove one‘s case contravenes the spirit behind truth telling processes involving public acknowledgement, healing and reconciliation for victims. This requirement transformed the
TJRC into a judicial body rather than the quasi-judicial body that it was intended to be. The
122 TJRC held ―power over‖ statement givers who chose to participate within that space. The power over the statement givers is illustrated by the solicitation of information that the
Commission needed which took precedence over the story (or experiences) that the statement giver wished to share with the Commission. I found a hierarchical manifestation of visible power whereby the TJRC, a state body, determined the rules of the game for those who wished to participate within its invited spaces.
The statement form adopted the definition of gross violations of human rights to be investigated by the Commission from the TJR Act. The statement giver had to compartmentalise his or her experience within this legal definition of gross human rights violations. The statement giver was not empowered by the TJRC to share her experiences as life stories but rather as legal cases. The lived realities of women victims were reduced and dehumanised into ―cases‖ corresponding with the legal mandate of the TJRC. Therefore where the statement takers could not find any correlation between the lived reality of a woman victim and the boxes to be ticked drawn from the mandate she could not participate within that space. One victim of political violence explained how she had to select ―suitable‖ aspects of her experiences that fit within the mandate of the Commission to participate in the space of statement taking:
I have submitted my statement to the TJRC statement takers. I called the statement takers myself. I have attended two awareness forums on the TJRC organised by Kituo Cha Sheria and Fida Kenya. I met the TJRC statement takers at a hotel in town. I did not want my neighbours to see me recording my statement because I fear for my life. In my statement I indicated the injustices I suffered in 1997 and 2007. I did not mention anything about my grandfather’s involvement in Mau Mau struggle and how it affected me and my family. To date we do not have land at home because of my grandfather being a freedom fighter and human rights activist. (Emphasis added) Majority of the women victims that experienced violations are illiterate or semi-literate. They relied fully on the statement taker to complete the technical statement form. In addition, from the focus group discussions, many of the women victims of political violence were not in possession of documentation and or records to support their claims. For instance, those who
123 suffered sexual violence did not report the incident to the police authorities for mainly two reasons. Firstly, at the time of the rape or other violation, there was a breakdown of law and order. Consequently, the police officers were not at hand to record any statements. Secondly, the victims of sexual or non-sexualised violence may report but the police officers fail to conduct any investigations into the matter. Ms Fatuma Achani, then a legal officer at FIDA
Kenya in Mombasa stated:
In the TJRC, there will be difficulties in sexual violence cases due to lack of evidence. The police do nothing in these cases and the victims may not have sufficient evidence. On the other hand, a victim of political violence in 1997 and 2007-2008 said:
My business was burnt down and property destroyed I had a cosmetics shop, salon and general store. I was not there when the arson happened. I reported the matter to the Chief and Likoni Police Station. I even have an Occurrence Book Number. They did nothing; they have done nothing to date. An analysis of the level of participation within the space of statement taking reveals a passive form of participation. Arnstein‘s Ladder of Participation would describe the statement-taking phase as ―therapy as participation‖. This form of participation is at a higher rung than manipulation as participation that I use to analyse the civic education space. In fact, Arnstein critically describes this level of participation as ―non-participation‖. In therapeutic participation, the public is engaged in numerous activities under the guise of their involvement in planning and decision-making. The activity of statement taking sought views from the statement givers on their proposed recommendations at individual, local and national levels. These questions relating to recommendations from individual victims gave an impression that the TJRC was involving the statement givers, female and male, in decision- making at the final report phase. Nonetheless, seeking views from women victims on recommendations did not guarantee their incorporation in the final report. In other words, the
TJRC, as a state actor, consulted with individual women victims but retained the ultimate power to decide (Bruns 2003:5 citing Potapchuk 1991).
124 In conclusion, the statement-taking space provided women participants with a high degree of participation as compared to the civic education space. The statement taking space was exemplary of invisible power manifested by patriarchal attitudes hindering the involvement of women in public affairs such as the TJRC. At the same time, there were depictions of closed spaces within the statement taking involving the formulation of informal rules and policy concerning participation in the TJRC processes. These informal rules proved to be an underlying reason for diminished participation of women as many of women‘s stories did not seem to fit in the categories of ―cases‖ that the TJRC was mandated to probe.
5.1.3 The Space of Public Individual Hearings
It was found that as more processes of the TJRC unfolded the level of participation was cumulatively enhanced. The IAP2 develops the concept of ―the spectrum of participation‖ which categorises the levels of public participation in decisions made by state and non-state actors. I categorise the public hearings at the second level of participation referred to as ―to consult‖. Under this spectrum, ―to consult‖ includes public hearings as the most common tool for state actors to obtain input from the public about their programmes. In the same vein,
Arnstein‘s Ladder of Participation incorporates consultation through public hearings as a higher degree of participation. Consultation as participation is a two-way flow of information; women weremore involved in this space of participation as compared to the previous phases.
However, Arnstein refers to consultation as the lowest degree of tokenism and window dressing (Arnstein 1969:217, 218).Despite the higher level of participation, there were no assurances from the TJRC that the recommendations and or priority concerns by women participants would be incorporated in the final report or more importantly the proposed reparations framework. An in-depth review of the final report of the TJRC confirms that some of the public hearings were merely a window dressing ritual as the women‘s inputs were not
125 fully incorporated in the final report, decisions on reparationsand or full range of options to be considered (Arnstein 1969:217, 218).
Under section 25(1) of the TJR Act, the Commission was mandated by law to hold public hearings, which were to be open to the entire public. In the case of the TJRC, the public hearings were used to obtain accounts from the public about the gross human rights violations that they had suffered and the reparations that they wished to receive from the state. Under this level of participation, the TJRC sifted the written statements and memoranda it had received to secure individual cases for public hearing. The Commission used hidden power through informal case selection rules to determine which statement or memoranda givers would be allowed to participate in the public hearing space.
5.1.3.1 The Structure of Public Individual Hearings
The Commissioners conducted public hearings within the headquarters of every county for only one and a half days. On the first day, the Commission held the public individual hearing.
On the second day, the TJRC conducted the women‘s hearings sometimes concurrently with the public individual hearing that may have spilled over from the first day. A media-briefing luncheon with the commissioners which was chaired by the CEO of the Commission was organised after the close of the hearings on the second day.
In the Coast region, the TJRC conducted public individual hearings in Lamu County, Tana
River County, Taita-Taveta County, Mombasa County, Kilifi County and Kwale County. As a matter of internal policy, all public hearings were held in county government premises such as county halls. Due to the scope of the research, the study analyses observations made in the hearings conducted in Mombasa, Kilifi and Kwale Counties. The case analysis of these three counties remains useful as the structure and form of the public hearings was replicated across the country.
126 Date County County Venue Headquarters
9th and 10thJanuary 2012 Lamu Lamu Lamu Fort-Mkunguni
12th and 13th January Tana River Hola Hola County Hall 2012
16th and 17th January Kilifi Kilifi Kilifi County Hall 2012
18th and 19th January Mombasa Mombasa Tononoka Social Hall 2012
23rd and 24thJanuary 2012 Kwale Kwale Kwale County Hall
24th and 25th January Taita- Wundanyi Wundanyi Social Hall 2012 Taveta
Table 1: Date and location of public individual hearings in Coast Region.
The public hearings mainly began between 9h00 to 10h00. They would run through to lunch break at 13h00 or thereabouts. The afternoon session of the public hearings would begin between 14h00 to 14h30 and conclude latest at 18h00. The limited time of the individual hearings denied a number of victims, the perpetrators and general public an opportunity to speak.
The public individual hearings would sometimes be conducted concurrently with the women‘s hearings as it happened in Kilifi and Mombasa counties. This definitely denied women who took part in the women‘s forum an opportunity to observe or stand as witnesses in the public individual hearings and or vice versa.
According to the Hearing Rules set to be followed by the Commission during its hearings a minimum of three (3) commissioners should constitute a panel. The following table
127 highlights the constitution of the panels, which in the case of the women‘s hearings, failed to meet the set threshold. One extreme case of such non-compliance was the Kwale women‘s hearing which only had one presiding Commissioner.
County/Location Presiding Commissioners
Kilifi Public Hearing Panel: Chairperson Tecla Namachanja
Wanjala, Margaret Shava, Judge Gertrude Chawatama, Amb.
Berhanu Dinka and Maj. Gen. Rtd Farah Ahmed
Women’s Hearing Panel: Margaret Shava, Judge Gertrude
Chawatama
Mombasa Public Hearing Panel: Maj. Gen Rtd Farah Ahmed, Prof Tom
Ojienda, Margaret Shava, Amb. Berhanu Dinka and Judge
Gertrude Chawatama.
Women’s Hearing Panel: Margaret Shava, Judge Gertrude
Chawatama
Kwale Public Hearing Panel Chairperson Tecla Namachanja
Wanjala, Amb. Berhanu Dinka and Maj. Gen Rtd Farah
Ahmed
Women’s Hearing Panel: Chairperson Tecla Namachanja
Table 2: Commissioners' Hearings Panels for Mombasa, Kwale and Kilifi Counties The hearings would begin with the National Anthem and a recital of the Commission‘s prayer led by the Regional Coordinator. Thereafter, the Commissioners constituting the hearing panel would be formally introduced.
128 All the proceedings during the hearings were conducted in English and Kiswahili. The witnesses were examined in either of these two languages. The Commission provided simultaneous interpretation from English to Swahili and vice versa in each hearing session.
The use of Hansard in every hearing session ensured that the TJRC captured an accurate record of the witnesses‘ testimonies. Further, the proceedings were video and audio recorded and the TJRC website updated every day with excerpts on the ongoing hearings. In addition, sign language interpreters were provided for all the hearing sessions.
The testimonies heard during the public hearings were comprehensively examined by the
Commission under the direction of a Leader of Evidence who is a legal professional. The
Commissioners were permitted to pose questions to the witnesses for further probing and clarification of their testimonies. The public hearings were formalised and similar to court proceedings. The Director of the Special Support Unit explained:
Everyone has about 40 minutes in the public hearing; so if it is in camera 40 minutes to an hour for your particular case because we are able to go in-depth to it. Under section 5(k) of the TJR Act, the Commission has a duty to provide victims of human rights abuses and corruption with a forum to be heard and restore their dignity. In complying with this legal requirement, the Commissioners were very polite to the witnesses and addressed them kindly and gently whenever they had any questions of clarifications. They edified the witnesses after their testimonies whilst thanking them for sharing their stories before the Commission. Where both male and female witnesses recounted painful events that made them weep, the Commissioners would stop the proceedings and give the witnesses sufficient time to compose themselves.
The findings hereunder discuss the extent of women‘s participation in the public individual hearings.
129 5.1.3.1.1 Women’s Participation in the Public Individual Hearings
The Commission experienced challenges in ensuring women‘s full and equal participation in these public individual hearings. Numerically, women were under-represented in the individual public hearings throughout the counties of Mombasa, Kwale and Kilifi.64 During the public individual hearings in the Coast region, the Commission heard a total of forty- two(42)witnesses of which thirteen (13) witnesses were female (31 per cent) and twenty- nine (29)witnesses were male (69 per cent). This finding reveals that the public hearing space was tokenism for women as they continued to remain numerically under-represented even in these invited spaces.
The Final Report does not provide data on the number of witnesses heard during the public individual hearings in every region. However, it acknowledges that the number of women witnesses in the public hearings was significantly low compared to the number of male speakers who testified before the Commission in public (Kenya. TJRC 2013 Vol 2C: 27). To explain this discrepancy the Final Report asserts:
…the deliberate effort by the Commission to ensure that women spoke in public about a range of issues affecting them is in itself a reflection of the increasing visibility and participation of women in public spaces and processes in Kenya,a trend that the Commission hopes will improve over the years (Kenya. TJRC 2013 Vol. 2c: 27). The Director of the Special Support Unit in highlighting these challenges stated:
The public hearings, (and) even in the case selection, we have tried to ensure that there is parity but we have not achieved that; that men and women are equally represented. Even though it is only on a numbers perspective. So, for example, we choose 10 witnesses per day such that five are men and five are women but we have not achieved that again because some of the statements that we received and the cases that we hear on those days have to be representative.
64 See Fig above 130
The South African TRC‘s experience was similar to that of the Kenyan TJRC. Unlike its
Kenyan counterpart, the South African TRC had over half of its participants in the public hearings being women. Nonetheless, gender bias was still noted in the course of its public hearings (South Africa TRC 1998, 4/10:285). The problem related with the nature of
29%
Male witnesses 69% Female witnesses
testimoniesDiagramDiagram 1010:: SexSex DDisaggregationisaggregation ofof Wwitnessesitnesses duringDuring thethe PublicPublic Hearings.Hearings. that were given by women participants in the public hearings. It was noted that women rarely spoke of their experiences under apartheid as women. Instead, women participants spoke as relatives and dependants of mainly male direct victims of human rights violations. Yet men spoke as direct victims of the apartheid regime. Ross revealed that 25 per cent of all cases involved women speaking about their sons, 11 per cent about their spouses and 8 per cent about their brothers (South Africa TRC 1998, 4/10:285). Interestingly, 4 per cent of the cases involved men speaking about their sons and none of the cases involved men speaking about either their spouses or sisters (South Africa TRC 1998, 4/10: 293). Only 17 per cent of women‘s testimonies and 5 per cent of men‘s were about abuses to women (South Africa
TRC 1998, 4/10: 285).
In South Africa‘s public hearings, the SA TRC reported that only 43.9 per cent of women spoke about their own experiences as direct victims (South Africa TRC 1998 4/10:287).
131 Majority of the women who reported themselves as direct victims suffered the violation of severe ill-treatment. Only 19 per cent of women direct victims had suffered forms of torture
(South Africa TRC 1998 4/10:288). 70 per cent of women direct victims had been killed
(South Africa TRC 1998 4/10: 288).
To explain this difference, Goldblatt refers to thestructuring of traditional patriarchal societies whereby men were expected to engage more with the state in active struggle whereas women were denied ―active citizenship‖ and relegated to the private sphere (Goldblatt 1997:7, 8). She adds,―the reality is that women were less of a direct threat to the apartheid state and were thus less often the victims of murder, abduction and torture‖. Due to the gender roles and societal expectations of women and men, women tended not to become direct victims of gross human rights violations by an apartheid state (South Africa TRC 1998, 4/10: 292). That notwithstanding, women chose to subordinate their own experiences within the private sphere of an apartheid state in favour of the experiences of the men in their lives (Goldblatt and
Meintjes 1994). Conversely, Godobo-Madikizela viewed women‘s accounts of other people‘s stories as their conscious way of carrying on ―a broader responsibility for the collective sense of national healing‖ (Godobo-Madikizela 2005 cited in World Bank 2006:12). Again, the social constructions of femininity (being a woman/mother) meant that women as nurturers, relational and caregivers of their families and society as a wholeneeded to prioritise the familial and societal needs over their own. In asserting this analysis, Godobo-Madikizela argues:
…women were conscious of what they were doing by not focusing on their own experiences. Far from undermining their experiences and needs, they were trying to purposely get others to remember their own loved ones who were murdered. The quality of ―bringing others along‖ through their accounts was considered a strength by some of the women interviewed in this study… (Godobo-Madikizela 2005: viii). As a result, the SA TRC did not adequately capture the experiences of women as women in apartheid.
132 In contrast, the Kenyan TJRC had fewer women speaking in the public hearings as opposed to men. Unlike in the South African situation, the women spoke about their own experiences as women. However, their experiences did not relate to the gross human rights violations but to day-to-day experiences that they faced, mainly in the private sphere, as Kenyan women.
County/Location Total No. of Female Witnesses Male Witnesses Witnesses(Excluding the women-only hearings)
Mombasa County 16 4* (one witness did 12 not speak; she was there to support her husband)
Kilifi County 14 6 8
Kwale County 12 3 9
Table 3: Sex Dissagregated Data on Witnesses in the Public Individual Hearings.
Thirteen (13) women were listed as witnesses during the public individual hearings observed in Mombasa, Kilifi and Kwale counties. Of these, only two (2) women spoke about gross human rights violations that they directly suffered as victims. The remaining eleven (11) women participants spoke generally about abuses and or disadvantages that women experience as women in the private sphere. Consequently, the SA TRC had a better turn out of female direct victims who testified within its legal mandate.
Firstly, in Mombasa County, four (4) women participated in the public individual hearings as witnesses; only one (1) woman, Ms. C, spoke as a direct victim of the past authoritarian regime i.e. a transitional justice issue. She was a victim of the 1997 Kaya Bombo clashes and
2007/2008 post-election violence. She testified about the loss of her property by looting and having been sexually abused by perpetrators of the political violence in 2007/2008.One woman, Ms. A, spoke generally about issues affecting women as women, more specifically 133 political participation/burdensome parental responsibility and drug abuse by youth. Ms. B of the Mombasa County public individual hearing was a woman living with disability; she spoke about the abuses facing women with disability i.e. the inadequacy of facilities for women with disability and difficulties of single mothers with disability. Finally, the last female participant did not speak having passively accompanied her husband to testify before the TJRC.
Secondly, in Kwale County, three (3) women participated in the public individual hearing.
Only one (1)woman spoke as a direct victim of the 1997 Kaya Bombo ethnic clashes; she explained the abuses that she personally suffered together with her mother and grandmother in the hands of a gang of security agents. The remaining two (2) witnesses were representatives of a grassroots based women‘s organisation. They spoke generally about the issues facing women in a patriarchal society, more specifically discrimination of women, lack of access to credit, education of their children etc.
Finally, in Kilifi County, six (6) women testified in the public individual hearing. None of these women spoke as a direct victim of a gross human rights violation. They spoke generally about youth unemployment, child sex tourism/prostitution, unemployment of women living with disabilities and ethnic discrimination.
In conclusion, the space of public individual hearings embodied a higher degree of participation in the overall spectrum of participation as a two-way conversation involving the women participants and the TJRC was generated. The participants in the public hearing space spoke about the violations that they had experienced and suggested appropriate reparations to transform their lives. Using the IAP2 and Arnstein‘s Ladder of Participation, the public individual hearings within the TJRC are categorised as ―participation as consultation‖.
Consultation is described as the lowest form of tokenism because incorporation of the proposals and accounts by the participants is not guaranteed by the TJRC. It was found that despite the high degree of participation in the public hearings, women remained numerically
134 and strategically under-represented. The low participation of women within this space is attributed to the manifestation of hidden power of the TJRC andinvisible/internalised power of a patriarchal society. On the former, I found that the TJRC determined the people to participate within the public hearings through informal rules hinged on the nature of violations that they wished testified before the Commission. Since most women were not considered as direct victims of the violations sought by the TJRC, the Commission then selected fewer women to testify in the public hearings. The case selection was done in the closed space of the TJRC‘s national office boardroom. The outcome was illustrated by the low numbers of women who ended up testifying in the public individual hearings space.
However, the few women who participated in this space, mainly did not speak about the violations that were the main subject of the TJRC processes; they spoke as women but not as women direct victims of violations being investigated by the TJRC.
The reason most women were not direct victims was caused by the invisible/internalised power which relegated women to the private sphere where they had minimal interaction with the authoritarian state.The apparent neutrality of the TJRC framework resulted in women‘s experiences within the private sphere being undermined in favour of men‘s experiences as direct victims within the public sphere. Subsequently, the Kenyan TJRC framework was insensitive to genderand its pervasiveness within society, to ensure equal participation of women and men in developing an accurate record of the human rights violations in the country.
5.1.4 The Women’s only Hearings Space
The concept of women‘s only spaces for participation was derived from the SA TRC.
Former commissioner Yasmin Sooka explained that female commissioners had difficulties convincing male commissioners on the importance of holding public hearings for women only (World Bank Report 2006:12). Finally, the SA TRC agreed to hold these ―special‖ hearings for women in response to requests by civil society organisations that opined that
135 women‘s voices were sidelined in the ―ordinary‖ hearings. Former commissioner Mapule
Ramashala argued that the TRC‘s male structure did not facilitate easy collection of women‘s stories and voices (World Bank 2006:12 citing Ross 2003).The rationale behind women‘s only spaces for participation was founded on the need to remain sensitive to societal and cultural gender norms and encourage women to speak of their violations within a safe space. The SA TRC held two such women‘s only hearings in Cape Town and
Durban in 1996 and Johannesburg in 1997. None was held in Eastern Cape. The TRC acknowledged that the absence of a special hearing for women in Eastern Cape might have altered the picture and pattern of abuses experienced by women as it had the most brutal forms of torture in prison (South Africa TRC 1998, 4/10:285).
To empower women to share their experiences, the TRC allowed female witnesses to negotiate the gender of the panellists in the hearings. As a result, in these special hearings an all women panel was set up to encourage women to freely speak (Godobo-Madikizela
2005:17). The TRC final report asserted that with time, ―the commissioners distinguished less and less between what were originally perceived as ―primary‖ and ―secondary‖ victims. The TRC recognised the problem in distinguishing and weighing physical and psychological pain suffered by the direct victim and psychological pain suffered by their loved ones (also indirect victims).
Like its South African counterpart, the TJRC devised means to ensure women‘s participation in the process. Using its own internal policies, together with consultations with women‘s rights organisations, the women‘s only hearings were created. It was an invited space for women‘s only participation. Women participated in these spaces as women with common concerns, issues and pursuits.
I observed the women‘s hearings in Mombasa, Kwale and Kilifi counties all located in the
Coast region of Kenya. In the women‘s forum in Mombasa County, a total of fourteen
136 (14) women shared their stories with the two presiding female Commissioners Margaret
Shava and Judge Gertrude Chawatama. In Kilifi County, a total of fifteen (15) women testified before the same Commissioners. Whilst in Kwale County, fifteen (15) women told their stories to the Acting Chairperson Commissioner Tecla Namachanja. The TJRC women‘s hearings were mainly dominated by middle aged to elderly women. Young women were under-represented throughout these hearings; only three (3) young unmarried women testifying in the Kilifi and Kwale County hearings.
5.1.4.1 The Structure of the Women’s Only Hearings
The essence of these women‘s only spaces was to enhance the information from women that the TJRC had collected through the public individual and thematic hearings. Unlike the public individual hearings, the women‘s only hearings were led by the Director of the Special
Support Unit. The Director of Special Unit stated:
… so we were proposing that as part of the hearings that we have meetings with women so that we can beef up the information from women as part of our official hearings…So we made a decision as the Commission that in every town that we hold hearings we shall hold a separate meeting with women and that is what we have been doing…. Despite the women‘s hearing being designed only to fill in the gaps in information from women arising from the public hearings, they were a great success in augmenting women‘s voices in the TJRC process. The women‘s hearing was a women‘s only space; men were not allowed to participate within this space, except for the technical staff of the TJRC. These spaces were closed for men; men did not have an opportunity to experience women‘s emotions and hear their narratives. In explaining the structure of the women‘s hearing, the
Director of Special Unit said:
…in those meetings it is women commissioners who are there, it‘s women members of staff as much as possible but they have some male officers. And those are part of the commission hearings but they are in a different format from the other public hearings …. These women meetings, they are public but for women only there are no men invited to that space
137 Since these women‘s hearings were designed with women in mind they begun at 10h00am and concluded by midday. These timings gave women enough time to balance their traditional gender roles in their homes and also participate in the TJRC process. In contrast, the public hearings would officially begin between 09h00-10h00 and conclude between 17h00-18h00.
The public hearings would be scheduled for one and a half days while the women‘s forum for half day. In explaining this difference, the Director of Special Support Unit said:
The women‘s hearings are held half day in the morning from 09h00-13h00. The normal hearings are from 09h00-17h00pm. The difference is that even though it is the whole day you will get to only listen to eight cases in one day whereas we might listen to fifteen in half a day for the women. So it is not a matter of analysing that women have been given half a day and others have been given one day. It is because we have pre- selected cases …even if it is not for three days or a week that we are there they (women) appreciate the time that they have been heard. Even though it is half a day for the meeting, even if it was for the whole day we wouldn‘t get different information we would probably hear the same issues…
The rules of participation in this space permitted any woman to engage with the TJRC whether or not a statement had been previously recorded. In fact, the Commission did not have a pre-selected list of cases to be heard. Before the women‘s hearings began, the staff from the Special Support Unit circulated a sheet of paper for women participants to record their names and nature of violation if they wished to testify. The hearing took the form of conversations between the Commissioners and women participants. The Director of Special
Unit added:
…For the women‘s hearings it is not so much about the in-depth because we may not have received your statement and we may have but it is not a public hearing where women come and talk but we are able to get a general picture … It is very random… Before the women‘s hearings began, the women would sing chants and choruses, together with the female Commissioners, to foster camaraderie and encourage each other. For instance in the Kilifi women‘s forum, Commissioner Judge Chawatama blended so well with the women as she joined them in song and dance. The women sang about their rights, empowerment and victory chants. Some choruses sang in the Kilifi and Mombasa women‘s forums went:
138 Chorus One Kina mama msilale (msilie) (Mothers do not slumber (weep) Lale, Lale (Lie, Lie) (Slumber, Slumber (weep, weep) Kina mama msilale (msilie) (Mothers do not slumber (weep) Bado mapambano (The struggle is not over yet) Mapambano, mapambano (The struggle, The Struggle) (Tumechoka kunyanyaswa, Tutapata haki zetu, Tumepata wakombozi) (We are tired of being mistreated, we will get our rights, we have found our saviour)
Kina mama msilale (msilie) (Mothers do not slumber (weep) Lale, Lale (Slumber, Slumber (weep, weep) Kina mama msilale (Mothers do not slumber (weep) Bado mapambano (The struggle is not over yet) Katika uongozi na katika utawala (In leadership and governance) Leo siku imefika (The day has arrived) Tutaanza mwaka mpya, Kenya mpya (We will begin a new year, New Kenya) Mama leo atasema, mambo yote tutasema (Today mothers will speak, we will speak about everything)
Chorus Two Kina Mama msilale (Mothers do not slumber) Msiwe kama popo si ndege (Do not be like a bat that is not a bird) Msiwe kama popo si ndege si mnyama (Do not be like a bat that is neither a bird nor an animal) Leo waonekana barabarani (Today you are seen at the roadside) Kesho waonekana kazini (Tomorrow you are seen at the workplace) Hujilikani uliko, si mama x2 (No one knows where you are, you are not a mother) x2
Kina Mama msilale (Mothers do not slumber) Msiwe kamapopo si ndege (Do not be like a bat that is not a bird) Msiwe kama popo si ndege si mnyama (Do not be like a bat that is neither a bird nor an animal) Leo waonekana na sigara (Today you are seen with a cigarette) Kesho waonekana na bangi (Tomorrow you are seen with bhang) Mara unauza mihadarati (Then you are seen peddling drugs) Simama imara x2 (Stand firm) x2
Usiwe kama popo si ndege (Do not be like a bat that is not a bird) Usiwe kama popo si ndege si mnyama (Do not be like a bat that is neither a bird nor an animal) Kina Mama msilale(Mothers do not slumber) Msiwe kamapopo si ndege (Do not be like a bat that is not a bird) Msiwe kama popo si ndege si mnyama (Do not be like a bat that is neither a bird nor an animal) Fungua mdomo wako (Open your mouth) Utasema husemi (Will you say you will not talk?!) Tutatasema! (We will talk!)
Chorus Three
Mama apate haki ya kisheria (A mother should get her right under the law) Mama apate haki ya kijamii (A mother should get her right in the family)
139 Mama apate haki ya kiuchumi (A mother should get her economic rights) Mama apate haki ya kisiasa (A mother should get her political rights)
Nonetheless, the women‘s only hearings provided a safe space for women to speak openly andtransparently. The meetings were informal and flexible so as to encourage women to speak openly and freely. The women‘s meetings had a totally different aura from the public hearings where the Commissioners themselves appeared serious and unapproachable.
Subsequently, women invited into this space were free to pour their emotions and lived experiences some going beyond the scope of the Commission‘s mandate. So women freely spoke, sang and wept including sharing stories they would not share in the presence of men.
5.1.4.2 The Nature of Women’s Participation in the Women’s Only Hearings
The findings from all the women‘s only hearings that were observed wasthat women did not speak about ―gross human rights violations‖ that are akin to transitional justice issues outlined by the TJR Act and international human rights instruments. Women largely testified of their daily experiences as women rather than what had happened as a result of politically motivated violence. They spoke about day-to-day problems arising from the private or familial sphere.
For example during the women‘s hearings, women testified about marriage, their children, divorce, inheritance, domestic violence and sexuality among others. If women‘s narratives were to be compartmentalized within the international human rights discourse they would be mainly described as violations of socio-economic rights.
The visible power of men was seen at play within the private space as women spoke about abusive heterosexual marriages, burdensome parental responsibility, sexual violence in the family etc. An analysis of the private space revealed that visible power was manifested in decision-making within the family as is in the political arena; that in fact the private space was equally political. Men exercised power over women by dominating, repressing, coercing and abusing them. Consequently, women in the hearings testified about being oppressed and repressed in their families through physical violence, sexual violence, unequal parental
140 responsibility, inaccessibility to resources and decision-making power among others.
Women‘s agency was seen in the manner in which they defined their narratives (Herstories) within this invited space. It was impossible for women to characterize the violations that they suffered outside their day-to-day problems.
Nonetheless, the TJRC used hidden power by determining which of these day-to-day problems (Herstories) would be incorporated in its narrative and thereafter recommendations for redress. Their day-to-day problems could not be distinguished from their experiences within a repressive, transitional regime. To capture women‘s experiences in its report, the
Commission took a proactive and activist approach. It categorized women‘s day-to-day problems as forms of systematic discrimination and or persecution of women as an identifiable and collective group (section 5(c) and (e) of the TJR Act). As I later discuss, this categorization had the effect of subjecting women‘s experiences of repression to an additional, different and or unequal criteria, which disadvantaged women. Also, by defining women‘s day-to-day problems as sex discrimination or inequality of sexes instead of violence against women they were underrated and underappreciated for redress.
The tables hereunder show the number of women who testified in the women‘s only hearings in the three counties of Mombasa, Kwale and Kilifi. They further illustrate the nature of their testimonies before the TJRC. It emerged that only nine (9) women testified about transitional justice issues; the remaining thirty-five (35) gave generalized accounts of their daily experiences as women. The Commission hence heard general accounts of women‘s needs and concerns rather than specific accounts from direct victims of gross human rights abuses. The witnesses restated what is in the public domain about the challenges that women experience in a patriarchal society. This outcome is attributable to the methodology in selection of female
141 witnesses who appeared to testify before the Commission and the limited civic education that was conducted prior to the hearings.
Table 4: Summary of Women's Voices during the Women's Hearings of the TJRC
Mombasa Nature of Violations
County/Location
1. A Education of girl child, drug abuse, political participation
2. B Rights of female persons with disability i.e. accessibility of facilities, single mothers living with disability, discrimination at work place
3. C Loss of property during 1997 and 2007/2008 post-election violence, sexual violence
4. D Abandonment of families by fathers, maintenance of children, low literacy levels, access to justice, credit/loans
5. E Access to justice, divorce before Kadhi‘s court, challenges of single motherhood for persons with disability
6. F Dual citizenship, sensitization of the Constitution for women, inaccessibility of Women‘s fund
7. G Land ownership
8. H Boundaries of the new constituencies, lack of acces to credit, land ownership
9. I Loss of property in 1997 Kaya Bombo tribal clashes, sustained burns and loss of arms when her home was torched
10. J Victim of violence during 1997 Kaya Bombo tribal clashes
11. K Victim of violence during 1997 Kaya Bombo tribal clashes, torture, cruel and degrading treatment in the hands of General Service Unit (GSU), children also suffered torture in the hands of GSU
12. L Children killed when a wall collapsed on them
13. M Unfair termination of employment from Kenya Ports Authority
14. N Domestic violence, mistreatment by Muslim husband
Kilifi County Nature of Violations 1. O Commercial sex tourism, child prostitution
2. P Employment opportunities for Coastal youth,
3. Q Low literacy levels, ethnic discrimination
4. R Discrimination in supply of relief food, unemployment for persons with
142 disability
5. S Dispossession of deceased husband‘s estate, neglect of children by in- laws, unemployment
6. T Low literacy levels for girls, discrimination during participation in politics-a male domain
7. U Lack of education for girls, parental irresponsibility of fathers, trafficking in persons
8. V Single motherhood, burdensome parental responsibility of father, lack of representation of women in provincial administration, inadequacy of law to address problems
9. W Disinheritance of husband savings
10. X Disinheritance of widows of husband‘s property
11. Y Unemployment, dispossession of deceased husband‘s property
12. Z Early marriage, teenage pregnancies, harmful cultural practices e.g. FGM, child sexual violence, parental neglect of children, child maintenance
13. AA Victim of 1997 Paradise Beach Resort Terrorist Bomb attack
14. BB Husband killed in 1997 Paradise Beach Resort Terrorist attack
15.CC Rights of discordant couples, marital rape, HIV/AIDS
Kwale County Nature of Violations
1. DD Irresponsible fathers, overwhelming family burden
2. EE Land ownership, dispossession of widows
3. FF Husbands disposing of matrimonial property without the consent and knowledge of their wives
4. GG Teenage pregnancies, girls dropping out of school, low literacy levels among girls and women
5. HH Inaccessibility of credit due to high interest rates
6. II Lack of knowledge of women‘s rights
7. JJ Early marriage for girls
8. KK Victims of 1997 Kaya Bombo ethnic clashes
9. LL Sexual violence during Kaya Bombo clashes, unwanted pregnancies as a result of rape, transmission of HIV as a result of rape
10. MM Men sodomised during the 1997 Kaya Bombo clashes
11. NN Lack of psychosocial support, lack of government reparations
143 12. OO Absence of civic education for women on the Constitution, poverty in female headed households
13. PP Destruction of women‘s group project by private developer
14. QQ Land ownership, youth unemployment, discrimination of women by society, protection of orphaned and vulnerable children
15. RR Commercial sex work as a form of livelihood, child maintenance
To exemplify this conclusion, I draw from the testimonies of some of the women participants.
Of the nine (9) women who testified about transitional justice issues, seven (7) were direct victims of the 1997 and or 2007/2008 post-election violence. Three (3) of these women, Ms.
C, Ms. L and Ms. I, testified that they suffered bodily harm in the form of rape and burn injuries. The remaining two (2) women were victims of a terrorist bomb attack in a beach hotel.Ms. I from Mombasa County was given a few minutes to narrate her story. She said that she was residing in Likoni area when the 1997 ethnic clashes occurred. Being from a migrant
Luo community, her house was torched by arsonists from the indigenous Coastal communities. She was inside the house at the time of the arson. She sustained serious burns on her arms losing the use of both arms. She stated that the government has never compensated her for the harm that she has suffered. In addition, no one had been prosecuted for the arson. She was seeking justice from the TJRC.
Ms. C testified that she had been tortured by General Service Unit (GSU) officers during the
Kaya Bombo 1997 clashes. The police officers broke into their home looking for Coastal youth whom they claimed to have been perpetrators of the violence. She said her son and husband were severely assaulted and tortured by the officers. They then demanded that she produces guns and weapons that were in her custody. She said:
They told me that I should remove the guns from where I had hidden them; that is under my buibui. I told them I had no guns. They violently and inappropriately reached under my buibui touching me as if trying to feel for the guns. I felt so humiliated.
144 One woman, Ms. LL from the Kwale women‘s only hearing, testified about the horrific gang rape ordeal that she had gone through during the 1997 Kaya Bombo tribal clashes. As a result of the rape, she contracted HIV/AIDS and conceived a child. She testified in both the public individual hearing and the women‘s only hearing. She only mentioned the sexual violation within the safe space of the women‘s only hearing. She said:
I spoke yesterday but I did not speak openly. I stand here because we are all women… Me, my mother, my sister and grandmother ―we were done‖. I have a beautiful daughter now arising from that…‖they worked on me thoroughly‖… Using local language expressions, she explained the gravity of the abuse she had suffered and at the same time seemingly accepting her circumstances by moving on with her life. The perpetrators of the rape have never been prosecuted. Similarly, the safe space of women‘s hearing, enabled Ms. LL to speak about the sensitive issue of negotiating safe sex and agency amongst discordant married couples. She had contracted HIV as a result of the rape. She shared her story:
It all happened on 13th August 1997. I had woken up well that day. I was staying in Likoni although my home is in Tiwi. On my way from Tiwi to Likoni, the matatu I was using was stopped by the GSU at Ujamaa. All the women aboard the matatu were asked where their husbands were. I said I don‘t have a husband and I have been responsible for my children. They took me to Shonda forest. Nikafanyiwa kazi sawa sawa (They worked on me very well). I did not die. I did not enjoy it but nilifanya. I went back to Likoni. I saw my mother and mother in law. I saw them crying. My first born was 7 years at the time. She told me that my grandmother and mother had their clothes removed by the GSU and they were violated. My grandmother was never the same again. She died in 2006.
Ms. MM, a member of a victim‘s group, shared with the TJRC what occurred during Kaya
Bomboethnic clashes from a woman‘s perspective:
When it occurred we did not known what it was about. We only know it was violence. The violence was so bad for women. Some women were told to have sex with their children. They stood by you as you did it. Then if there was a son, he is told to have sex with his mother. Unashughulikiwa kwa mbele kisha unashughulikiwa kwa nyuma (They deal with you from the front then from the behind).There are over 300 women who we try to help so that they can move on with their lives…When they hear motorbikes hooting, some women would faint. Some women lost their homes and had to sleep in the forest for some days. A lot of property was lost. What was most painful? For some
145 of us eating is difficult. Some women can‘t afford to buy food. They have no strength to find money…For those who were raped, some fell pregnant. But their problem is that they do not want to be known. If they tell you that they were raped, they insist that you should not tell anyone for fear of being chased. Many women are afraid to be stigamtized, chased or laughed at sothey do not dislose that they were raped… Five (5) other women victims of the Kaya Bombo violence were present at the women‘s only hearing in Kwale County. They gave personal testimonies of what they went through during the Kaya Bombo violence. Ms. KK shared:
I have come here because of what happened to me in the past. I was at home having been bereaved by my husband. GSU and police came in by force into my house. I had covered myself not to be seen by a man. I was beaten and then they removed clothes I had used to cover my face. He pulled me and threw me away. A young girl asked them to assault her instead I was bereaved and according to Islam I could not talk to anyone. She was physically assaulted and told to uncover the sheets in search of guns. Finally, in Kilifi County, two women spoke about their experiences as victims of a terror attack. They indicated that they felt abandoned by the government. One young woman had suffered burns all over her face and had to undergo plastic surgery abroad. The costs of the surgery were borne by the Israeli government. Since then she testified that she has not received any further support to continue with her life. She hoped that her participation in the
TJRC would have a positive outcome. She expressed fatigue and resentment over processes that are began by government with the aim of assisting victims yet ending up without any positive results.
The rest of the herstories involved daily experiences that women had as women. In the words of the Commissioner Namachanja on the voices of Coastal women:
For Coast women I found that the inadequacy of law, education for girls, negative culture, losing children to drugs, sex tourism, land, rape and disappearance of children stood out as issues of greatest importance. For instance, in the Mombasa County women‘s hearing, Ms. N testified that she was a victim of domestic violence. She shared:
I am happy for this opportunity with TJRC. I am here to talk about my marriage with a Muslim man. I am a Christian. I have stayed with my husband for 25 years. We have five children. I am a professional secretary and my husband was also educated. My husband used to physically abuse me in the presence of our children. In 2003, my
146 husband tried to kill me. He came and held my throat. My son came in and told him to leave me. When he lost his employment, the violence worsened. He would threaten to cut me and my children with a machete. It has become too much. I have moved from our bedroom. I share the room with my daughter. But God has defended me. In 2005, he gave me talaka saying that he no longer wanted me to be his wife. He did not tell me what my mistake was. I refused to leave the matrimonial home. I built the house and he purchased the land. He threatened to kill me so I had to leave. I got a two bedroomed house and received help from my sister to pay rent. Since I was educating the children on my own, I reported him to the Children‘s Office and the Chief. I was not successful. But God has helped me. My children have graduated and are doing well in school. My marriage was blessed in church and he was blessed at the Chief Kadhi. I still call him my husband. My husband remarried and my co-wife now calls me a prostitute. I reported them to the village elder. Emotions ran freely at the women‘s hearings especially the Kwale and Kilifi women‘s meeting.The informality of the women‘s only hearings was therapeutic, brought some degree of healing and sharing of burdens. Women of all ages and from different backgrounds found solace in each other; strength in sisterhood to fight injustices that they went and are still going through. The women‘s only hearing invited space had women generate ―power with‖ one another upon the revelation of commonalities in their lived realities.Many women participants spoke of the challenges they experienced in the private sphere relating to marriage and parenting. To further illustrate ―power with‖ in the invited space of women‘s hearing, a female witness in Kwale County broke down in tears as she recounted breaking her teeth as she jumped from a wall scampering for safety during the Kaya Bombo tribal clashes. The response of the Acting Chairperson Commissioner Tecla Namachanja referred to the commonalities of women as sisters. Whilst the counsellor comforted the witness she stated:
My sisters and mothers, take courage. We are here to affirm what happened. We would like to hear what happened to you so that we can record and come with solutions so that in future we can see how women can be protected. It is painful but I would encourage you to be strong and explain what happened. So take heart and explain to us. If my sister has composed herself she can continue. In the Kilifi women‘s forum, a young woman Ms. S, wept as she retold the cruel treatment she had gone through at the hands of her father-in-law following the demise of her husband.
She shared the challenges of being a single mother to two children with a low source of income. She explained how she had been dispossessed of her husband‘s property and
147 ostracised by her in-laws. The Commission gave her time to weep, share and re-tell the abuses she had undergone. To give time to the witness to compose herself, the Commissioner Judge
Chawatama expressed sadness as to the experiences that Ms. S had gone through especially since she was a young woman. She said that older women had a duty to help the young. As the young lady continued to testify with a lot of emotion, Commissioner Chawatama invited the women to sing a song. The women sang ―Yote yawezekana na imani‖ (Everything is possible with faith). She later invited an older woman who is a widow to share with the forum how she handled widowhood.
Another case in point involved the women‘s only hearing in Kwale County.A commercial sex worker emotionally testified on the reasons she engaged in commercial sex. As she pleaded to the State to recognise sex workers and provide them with formal employment, she elicited tears from a majority of women present during the forum. The counsellors moved around the hall with tissue attempting to comfort the women in distress.
5.1.4.3 The Influence of the Private and Public Dichotomy
Women‘s voices concerning their lived realities pointed out to a patriarchal society dichotomised by two spheres: the private and public sphere. In both spheres, the patriarchal social order tended to exercise power over women through domination and insurbodniation to the point that women were unable to effectively exercise power with and power within to result in positive transformation of their lives. The testimonies of women evidenced the limited accessibility of the public space wherein processes such as the TJRC were conducted.
Consequently, women were under-represented within the public space. On the other hand, their presence was relegated to the private space consisting mainly of the family. It was therefore expected that women would then speak more about violations occurring within the private space relating to the family.
148 In the same vein, in Kilifi County, one woman spoke about the limitations within the private sphere that were imposed upon women‘s lives which ensured men maintained control over their freedom of movement, right to personal integrity, freedom from physical and sexual abuse and right to work and adequate remuneration. She told the TJRC:
There is an increase in single mothering. The fathers are absent; they cheat the women, make them pregnant and then abandon them. Even the cases that are taken forward fail. The young girls have travelled to Saudi Arabia to work. They leave their children with their mothers. The agent sometimes withholds the passports of the women even when they refuse to travel. At times they even force the young women to travel. They take boys and rape them; now we do not have any virgins. Abuse of labourers‘ rights who are not provided with safe apparel for better working conditions e.g. Magarini salt. The companies do not pay women labourers fairly and sufficiently to sustain themselves. Kilifi is a fishing area and some sail to and from Pemba and Zanzibar. Some of these fishermen disappear with the seasons of fishing leaving their wives and children. Homosexuality is on the increase; it starts in the home and it increases even in schools. Ms. V from Malindi, Ganze location spoke about the onerous family responsibility that women carry singlehandedly in Kilifi County. She stated:
We are the ones who take primary responsibility. These men are polygamous they take our children who end up being fourth wives. The fathers only show up at the time to take dowry for the marrying off of the child. He ends up having power over the lives of the children. Marital rape even when we are tired having worked to support our children. The husbands do not believe in us. When we go for women‘s groups they say we get more education and will change our lives; our husbands do not want that. They want us to remain at home. Where women spoke about violations in the public sphere, they focused on the barriers to their involvement within that space. In other words, their violations in the public sphere involved limitations to meaningful participation in a closed space mainly dominated by men e.g. representation in politics, access to employment, access to credit etc. Ms. RR from
Kinango, Kwale County shared that after pursuing a case of incest involving a young girl, she was ridiculed, labelled a prostitute and told she was negatively influencing other women. In her words:
A woman in Kinango does not have a say. We who try to talk are labelled prostitutes. How can we help others when we do not want to be branded prostitutes? When the elderly men of Duruma and Digo communities speak, they have say. Yesterday [during the public individual hearing] when we wanted to talk some men here at the gate were
149 saying after the hearings that we wanted to betray them. If they can step on us here in town, how much more huko ndani ndani (in the rural interior). Ms. GG‘s testimony showed the role of men and the normative system of culture in stifling the power within women to speak openly within the invited space of public individual hearings where both men and women competed for participation. Moore argues that socially enforceable rules depicted in socio-cultural norms such as those referred to in Ms. GG‘s testimony are like laws even where the state is not involved. Where a woman opts to disregard socially enforceable rules concerning her active participation in the political and public sphere, she is ridiculed, undermined and ostracised through demeaning labels such as prostitute, traitor etc.
Expressing women‘s challenges in accessing the public space through employment, Ms. Y told the TJRC about the injustices suffered by women labourers working in Magarini salt farms. Her powerful account stated:
Women work like slaves in the salt farms. Many have rough and pimpled skin because of salt. Salt farming began in 1964. I began working there in 1998. The work is done by both men and women but the woman is violated in Magarini. She carries sacks of salt and she harvests and quarries salt. All packaging of salt is done by the women. When I began that work in 1998 we were being paid 70 cents per packet. We normally pack 40 packets in one bandari (sack). You may need to work 24 hours to get only Kshs 200 or Kshs 300. We complained about these low wages due to hard economic times. The owner of the company agreed to increase our salary every year by one penny. We reached Kshs1 per packet in 2004. The owner of the company refused to increase beyond this price. We continued working both day and night. I worked in the day shift. We sought further increment of our wages. The employer said that the women‘s section will not be given a pay increment. The manager of the company instead issued condoms to me and my women friends. There have been such violations at the salt belt… We have worked for so many years and they do not employ us on permanent basis. Potential employees forced to undergo HIV test prior to employment. We are not allowed to join trade union… If you go to Gongoni, which is Krystalline salt company, no single woman has been taken as a permanent worker. I am not cheating you, this is a true story... Women here cannot take their children to school…The issue of salt mines contributes to early marriages… I appeal to the TJRC to assist these women to get decent salaries…What will the women of Kilifi or Magarini do? Let me end there because if I continue, I will cry.
150 In the same vein, Ms. A, a women and children‘s rights activist from a community based organization named SOLGIDI, from Mombasa County, further confirmed the barriers for women to engage in the public space. In her testimony she highlighted:
…It is like I am not respected as a member of the society. In participation in politics we do not have a voice and instead we are used as campaigners. When we want to talk, we are told to sit down. Even women say the woman can‘t make it, they pull her down… Our income is small. When we have problems we do not have anywhere to run for assistance. When we go to the village elder you are told that those are family problems so you should go back and sit down with the family… We get Kshs 50,000 loans but can it really help. So even economically, we are discriminated… Another witness from Mombasa County, Ms F., again spoke about problems concerning women‘s political participation, access to credit and citizenship and marriage. In her testimony, she found the relevant law and policy as not having had a positive impact on the lived realities of women. She said:
We have not been given a forum where we can speak… I want to talk about women who are involved in politics. I have been a politician for a long time. Women in politics have not been taken care by the Constitution. When women engage in politics she encounters people who physically assault her and destroy her property. Women are afraid to engage in politics. The Constitution does not help us. Women groups who wish to get loans from the Women Fund find it very difficult. They are told to do things that they cannot. The women who cannot support themselves have not benefited from the Fund. If the government wants to help women, they should have civic education on how to access loans from the Women‘s Fund…
The conversations of women during the women‘s only hearings were relationally defined.
Women shared stories that involved their husbands, sons, daughters, relatives etc. Some women‘s voices from the hearings were:
Our husbands leave us. Our children are defiled…In Kenya, we have free primary and secondary education. But I can‘t go to primary without going to nursery which means money. Many of our children do not go to school. There is an increase in single mothering. The fathers are absent… We are the ones who take primary responsibility. These men are polygamous they take our children who end up being fourth wives. The fathers only show up at the time to take dowry for the children off the child. He ends up having power of over the lives of the children. Marital rape even when we are tired having worked to support our children. The husbands do not believe in us…
151 My husband has not bothered to look for me. I live in Watamu with my children. He remarried another woman from his Maasai community. Since we separated he has been marrying different women. Recently, he has wanted to to return to him. I am not sure whether he just wants to attempt to forcefully circumcise me again. When a husband dies, the in-laws want to dispossess the widow with all the property. They say you were married there and came empty handed. Even though he may have bought the property… Women also viewed themselves as ―sisters‖ and ―mothers‖. The reference to the participants as mothers and sisters then set the tone for testimonies that dealt mainly with women‘s relationships within the family and gendered division of labour. Voices of these gendered narrations as drawn from the women‘s only hearings are as follows:
Representative from Maendeleo ya Wanawake, Kwale: Mama Commissioner we have had a number of problems. Commissioner Namachanja:For those of you who are here for public hearings. You heard what the men shared. How they were affected during tribal clashes and the Kaya Bombo. What we know that when we have conflict, women are also affected. My sisters and mothers, take courage. We are here to affirm what happened. We would like to hear what happened to you so that we can record and come with solutions so that in future we can see how women can be protected. Witness Masumbuko: Chairlady, you are a mother …And you are educated and informed. How would you feel if you were told that your son has done all these things when it is not true? Commissioner Namachanja: Thank you my sister Mishi and Mwanahawa for explaining women‘s problems. Commissioner Namachanja: My sister from MYWO should take this thing seriously. Being mentally violated is serious. I ask you that when you meet with other women and note that if they do not have counselling, you can get the inner wounds to be healed which cannot be seen and someone can bear until they die. Talk to the counsellor from Kenyatta Hospital… Lyrics to some of the choruses sang in the Kilifi and Mombasa women‘s only hearings that defined women as mothers:
Kina mama msilale (msilie) (Mothers do not slumber (weep) Mama leoatasema, mambo yotetutasema(Today mother will speak, we will speak about everything) Hujilikanauliko, si mama x2 (No one knows where you are, you are not a mother) x2
The problem with this kind of conversation is that women were not viewed in their capacity as rational, free, equal and individual women. As Chodorow asserts, women‘s status as
152 mothers during the hearings only served to perpetuate a social and structurally induced psychological mechanism that created and maintained barriers for full emancipation of women within those invited spaces (Chodorow 1978:4, 5). In addition, the labelling of women participants, especially as mothers, imposed gender stereotypes of women and perpetuated a cycle that confined women to the home or private sphere and stifled their entry into the public arena. In an analysis of the public hearings, I found that male witnesses were not referred to as ―brothers‖ or ―fathers‖. As such the conversations defined them in their own capacity as individual and free men not subsumed in their societal gender roles.
Furthermore, the dominant conversation of women as mothers had the effect of stifling voices of women who were not mothers especially the young women. In fact, the women‘s only hearings were dominated by middle aged to elderly women. For instance, in the women‘s only hearings observed by the researcher, only four (4) young women out of thirty-three
(33) women witnesses were given an opportunity to speak. This translates to an insignificant
12 percent of all the testimonies of the women‘s hearings in Mombasa, Kwale and Kilifi counties. Therefore women‘s experiences documented by the Commission reveal only a diminished truth as relates to young women.
5.2 The Legal Language of the Mandate of the TJRC
In interrogating the law, I use the constitutive law establishing the Commission i.e. the TJR
Act.To some extent, the TJR Act created an enabling environment by conferring legal obligations on the TJRC to ensure women‘s participation in the process. The legal requirement of instituting special mechanisms that enhance women‘s participation is a by- product of intensified advocacy within the transitional justice field.
Under this section, I critically discuss the positive aspects of the law that enhanced women‘s participation in the TJRC. I then analyse the drawbacks of the law in ensuring full
153 participation of women. I use examples from the Kenyan TJRC and draw comparisons from the truth commissions in South Africa and Peru.
5.2.1 The Legal Structure of the TJRC Vis-A’-Vis Women’s Participation
Previously, Commissions were male dominated e.g. the Waki Commission of Inquiry into the
Post-Election Violence comprised three male Commissioners, Akiwumi Commission of
Inquiry into the Tribal Clashes comprised three members (2 male and 1 female) and
Goldenberg Commission comprised three male members among others. Previous
Commissions appointed by the President including the Akiwumi Commission, Kiliku
Commission, Ndung‘u Commission and Waki Commission all had male Chairpersons. The membership of these Commissions was determined by the President who had no legal obligation to ensure gender parity and balance. In addition, these Commissions were not constituted by statutes that specifically governed their processes.
Pursuant to section 10 of the TJR Act, the Selection Panel of the TJRC had due regard to gender equity and regional balance resulting in the appointment of five male and three female commissioners. The TJR Act required that the Chairperson of the TJRC and the Vice-
Chairpersonbe of different gender. It is in compliance with this law that Amb. Bethuel
Kiplagat and Tecla Namachanja were appointed Chair and Vice-Chairperson respectively.
Further, in compliance with section 27 of the TJR Act, the Commission established the
Special Support Unit, whose main responsibility was to adopt specific mechanisms and procedures to ensure the participation of vulnerable groups including women in all the TJRC processes; it provided ―support‖ to the other seven (7) departments within the TJRC in the involvement of special and vulnerable groups and addressing gender concerns. The Special
Unit was also tasked with provision of counselling services to victims and witnesses including catering for their general welfare to facilitate participation in the TJRC. The Special Unit was responsible for organising all women‘s only hearings and thematic hearings on women,
154 children and persons with disabilities. The Special Support Unit was similar to the Gender
Unit of the Peruvian CVR.
These special mechanisms are progressive as they ensure that women‘s voices and experiences are not invisible. As abovementioned, the Special Unit played a crucial role in designing the women‘s only hearings and coordinating them when they were held by the
TJRC. Despite these special mechanisms, both the Peruvian CVR and the Kenyan TJRC failed to adopt a complete gender analysis of the history of violence, repression and authoritarianism in their respective countries.By merely replicating past truth commissions through the establishment of the Special Support Unit, the Kenyan TJRC ignored lessons learnt and failed to conceptualise a ―new way of seeing‖ women‘s participation.The legal initiatives focused on increasing numerical representation of women in public affairs concerning peace and reconciliation rather than strategic representation through their submissions to the TJRC.
The underlying reason for the incomplete gender analysis was the compartmentalising of gender issues through a unit/department rather than mainstreaming gender in all the departments of the truth commission. The TJRC and its constitutive Act conceptualised women‘s participation as unusual and out of the ordinary hence the use of the term ―special‖.
From this paradigm, women entered into the TJRC invited space as extraordinary rather than ordinary participants. On the other hand, since men were not described as special interest groups, unless they were incapacitated by physical disability or other ―vulnerability‖, they were ordinary participants in the TJRC invited space. As uncovered in this study, women‘s presence was inadequate in the ordinary processes of the TJRC e.g. public individual hearings, statement taking. However, when the Commission modified its procedures and applied extraordinary/special processes the floodgates were opened for women‘s participation e.g. the women‘s only hearings and standalone chapters on women or gender.
155 From the description of the Director of the Special Support Unit, the Unit lumped women together with other ―special and vulnerable groups‖ such as persons with disability, children and others. In this regard, women were viewed as ―a special group‖ rather than ordinary participants like men. Additionally, as one of the special interest groups being addressed by the Special Support Unit, women‘s issues were subsumed in the myriad of issues affecting other vulnerable groups hence could not get the prominence they deserved. Consequently, the
Special Support Unit was overburdened with providing a variety of services for all
―vulnerable groups‖ e.g. sign language interpretation, counselling to victims and witnesses, physical accessibility for persons with disability and facilitating women‘s only hearings. In an interview, the Director stated:
…so … the things which we [the Unit] need to ensure for example at the hearings that people are able to communicate in a language of their choice so we provide and make sure there is a sign language interpretation for people with disability and other language interpretation based on the needs as expressed by the witnesses. Therefore, the Special Support Unit catered for a variety of issues; it was not only on or about women. The main function of the Unit that specifically targeted women as a social group involved organising and facilitating women‘s only hearings in every area that the Commission conducted public hearings. The other functions that would have enhanced women‘s participation in these hearings e.g. civic education were conferred on other departments of the
Commission.
Since the Special Support Unit was only located in the national offices in Nairobi, there was insufficient capacity in the regional offices to coordinate and enhance gender related concerns. The Coast Region Coordinator referred the researcher to the Director of the Special
Support Unit in Nairobi for further information on how the Unit would work with women in the region.
156 5.2.2 The Deficiencies oft Legal Mandate of The TJRC In Relation To Women’s Participation
I found that despite the mandate being clearly spelt out in the law, the participation of some women in the TJRC process was degraded as they submitted views that were outside its mandate. This may be attributed to the lack of awareness of the mandate of the TJRC and the gender insensitive framing of the TJR Act.
The Truth, Justice and Reconciliation Commission, as its name suggests, was responsible for establishing the truth and achieving justice and reconciliation in the nation of Kenya.Section 5 of the TJR Act outlines the objectives of the Commission in promoting peace, justice, national unity, healing and reconciliation among the people of Kenya by: -
(c) Establishing an accurate, complete and historical record of violations and abuses
of human rights and economic rights inflicted on persons by the State, public
institutions and holders of public office, both serving and retired, between 12th
December 1963 and 28th February 2008, including the-
(i) antecedents, circumstances, factors and context of such violations;
(ii) perspectives of the victims; and
(iii) motives and perspectives of the persons responsible for commission of
such violations, by conducting investigations and holding hearings;
(d) establishing as complete a picture as possible of the causes, nature and extent of
gross violations of human rights and economic rights which were committed
during the period between 12th December 1963 and 28th February 2008, including
the-
157 (i) antecedents, circumstances, factors, and contexts of such violations;
(ii) perspectives of the victims and the motives; and
(iii) perspectives of the persons responsible for commission of the violations; by conducting investigations and holding hearings;
(e) investigating gross human rights violations and violations of international human
rights law and abuses which occurred including massacres, sexual violations,
murder and extra-judicial killings and determining those responsible for the
commission of the violations and abuses;
(f) recommending the prosecution of the perpetrators of gross human rights violations;
(g) determining the ways and means of redress for victims of gross human rights
violations;
(h) facilitating the granting of conditional amnesty to persons who make full disclosure of
all the relevant facts relating to acts associated with gross human rights violations and
economic crimes and complying with the requirements of this Act;
(i) Providing victims, perpetrators and the general public with a platform for non-
retributive truth telling that charts a new moral vision and seeks to create a value
based society for all Kenyans
(j) Providing victims of human rights abuses and corruption with a forum to be
heard and restore their dignity;
(k) …
(l) Compiling a report providing as comprehensive an account as possible of the
activities and findings of the Commission under paragraphs (a), (b) and (f) with
158 recommendations on measures to prevent the future occurrence of such
violations.‖ (emphasis added)
The mandate of the TJRC is very broad. Nonetheless, it is very specific in directing that the
Commission deals with either human rights violations and abuses meted by public officers or gross human rights violations and international human rights law abuses including massacres, sexual violence, murder and extra-judicial killings.
Therefore, where a public officer is not involved, then the nature of violations to be investigated and heard by the Commission in its sittings should be gross human rights violations akin to transitional justice issues. The transitional justice issues to be heard and investigated by the Commission should have occurred between 12th December 1963 (when
Kenya acquired independence) and 28th February 2008 (when the National Accord between the former President Kibaki and Prime Minister Odinga was forged).
Section 2 of the TJR Act itself defines the term ―gross human rights violations‖ as:
(a) Violations of fundamental human rights including but not limited to acts of torture,
killing, abduction and severe ill-treatment of any person;
(b) Imprisonment or other severe deprivation of physical liberty;
(c) Rape or any other form of sexual violence;
(d) Enforced disappearance of persons;
(e) Persecution against any identifiable group or collectivity on political, racial,
national, ethnic, cultural, religious or gender or other grounds universally
recognized as impermissible under international law;
(f) Any attempt, conspiracy, incitement, instigation, command, procurement to
commit an act referred to in paragraph (a) and (c), which was committed during
the period between 12th December 1963 and 28th February 2008, and the
159 commission of which was advised, planned, directed, commanded or ordered, by
any person acting with a political motive; or
(g) Crimes against humanity
The intention of legal drafters was for the Commission to investigate ―gross violations of human rights‖ and ―economic rights violations‖. The latter can only be construed as economic crimes e.g. grand corruption and illegal acquisition of public land but not socio-economic rights e.g. right to water, health, education etc. The Kenyan Truth Commission, unlike other previous truth commission, was mandated to investigate economic crimes in addition to gross violations of human rights. Nonetheless, the Commission opted to employ a liberal approach in interpreting the law by defining economic rights violations as socio-economic rights violations.
The TJR Act also distinguished between human rights violations and violations of international human rights law. The Commission understood the phrase human rights violations as those violations that were provided under national law. The final report asserts that the Commission analysed both human rights violations under national law and relevant international law that were violated within the mandate period (Kenya. TJRC 2013, 1:2: 63).
The TJR Act was enacted in 2008. With the promulgation of the Constitution in 2010, the distinction between national human rights violations and international human rights violations does not arise especially where Kenya has ratified an international human rights instrument. 65
In section 5(a) and (b), the TJR Act also makes a distinction between civil and political rights and socio-economic rights. The phrases ―historical record of violations and abuses of human rights and economic rights” and “gross violations of human rights and economic rights” seem to suggest that there is a difference between violations and abuses of human rights and economic rights. The Commission found the distinction inconsequential.
65See section 2(5) and 2(6) of the Constitution of Kenya 2010 160 In comparison, the legal mandate of the SA TRC has been described as ―the most complex and sophisticated mandate for any truth commission to date, with carefully balanced powers and an extensive investigatory reach‖ (Hayner 2011:27). Verdoolaege explains that the mandate of the TRC ―was very ambitious‖ (Verdoolaege 2008:8). The legal definition of
―gross human rights violations‖ in the constitutive Act of the SA TRC encapsulated violations of civil and political rights and did not expressly deal with gender violence or gender-specific crimes, whether sexualised or non-sexualised. The SA TRC acknowledged that ―the definition of gross violation of human rights adopted by the Commission resulted in blindness to the types of abuse predominantly experienced by women‖ (South Africa TRC 1998, 4/10: 289).
The Act constituting the SA TRC stated that its objective was to ―promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by:
1. Establishing as complete a picture as possible of the causes, nature and extent of the
gross violations of human rights which were committed during the period from the 1st
of March 1960 to the 5th of December 1993;
2. Facilitating the granting of amnesty to persons who make full disclosure of all the
relevant facts relating to acts associated with a political objective and comply with the
requirements of this Act;
3. Establishing and making known the fate or whereabouts of victims and restoring the
human and civil dignity of such victims by granting them an opportunity to relate their
own accounts of the violations of which they are the victims, and by recommending
reparation measures in respect of them;
4. Compiling a report providing as comprehensive an account as possible of the activities
and findings of the Commission contemplated in paragraphs (1), (2) and (3), and
161 which contains recommendations of measures to prevent the future violations of
human rights‖ (South Africa TRC 1998, 1/4: 54).
The philosophy behind the Act was the uncovering of the truth about past gross human rights violations as far as was possible for reconciliation and national unity. The Act conferred the
SA TRC with power to grant individualized amnesty, search premises and seize evidence, run a witness protection program and subpoena witnesses (Hayner 2011:27,28).
Nevertheless, the legal language of the Act posed numerous challenges to the work of the SA
TRC. Meintjes critiqued the Act for failing to allow the SA TRC to systematically investigate apartheid as a system or crime against humanity. She asserts that the Act framed a discourse that emphasised on individual experiences, national healing and reparations (Meintjes
2009:100).
Similarly, the mandate of the Peruvian CVR was to investigate human rights abuses and violations of humanitarian law that had been perpetrated by the state or ―terrorist organisations‖ between May 1980 and November 2000.66 The CVR was directed to uncover and analyse the underlying factors of violence and the political, social and cultural context that contributed to the armed conflict. It was also required to determine, as far as possible, the whereabouts, identity and circumstances of the victims of the armed conflict and who was responsible for the abuses and violations. It was specifically directed to investigate the violations of the ―collective rights of the native and Andean communities‖ (Hayner 2011:36).
Hayner asserts that this aspect of its mandate was not developed as a core component of the
CVR‘s research. The CVR was expected to contribute to judicial investigations, develop a reparation framework and recommend reforms that would ensure that such events do not recur.
66 The mandate period covered four previous regimes: General Francisco Morales Bermúdez (17th May 1980- July 1980), Fernando Belaúnde Terry (28th July 1980 – 28th July 1985), Alan García Peréz (28th July 1985- 28th July 1990) and Alberto Fujimori (28th July 1990 – 20th November 2000) (Amnesty International 2004: 4). 162 Bearing in mind women‘s experiences in conflict, I found that the TJR Act, in describing the mandate of the Commission, does not consider women‘s realities. It focuses on male priorities and interests. With majority of the peace negotiators to the Kenya National Dialogue and
Reconciliation Framework and the participants of the Task Force being men, the resulting law could only be male.Subsequently, the legal construction of the mandate of the TJR Act perpetuated sex discrimination as its application limited the TJRC from systematically investigating the repressive past regimes from the perspective of both women and men.
The use of the termof ―gross human rights violations‖ by the legal mandates of the Kenyan,
South African and Peruvian truth commissions is conceived under the international human rights framework. From a feminist point, international human rights as a body of law has been conceived as a set of ―male‖ rights (Edwards 2008:10). The content of international human rights law, that includes the acts defined as gross human rights violations, privilege men and fail to acknowledge, and marginalize or silence women‘s needs and interests (Edwards
2008:10). It thereby follows that the legal mandate of the TJRC defined the acts that were to be prioritised, heard and eligible for reparations as ―gross violations of human rights‖. Other than sexual violence, many of the gross human rights violations are violations that are mainly experienced by men since they are perpetrated by the state within active struggle and in thepublic sphere. Due to gendered constructions of maleness and femaleness, most women are generally excluded from active citizenship and relegated to the private sphere. As a result of their limited direct interaction with the state and public officers, most women were not direct victims of gross human rights violations as defined in the legal mandates of the Kenyan
TJRC, SA TRC and Peruvian CVR.
The evidence of the phallocentric nature of the legal mandates of the three truth commissions is derived from the effect of their application, which diminished women‘s participation. In the same vein, these truth commissions had to modify their approaches to ensure women‘s participation in the process (Edwards 2008:10; Kenya TJRC 2013 Vol 2C: 27). Like the
163 Kenyan TJR Act, the constitutive law of the SA TRC, did not provide guidelines on the defining the term ―gross human rights violations‖. The SA TRC and Kenyan TJRC had wide discretion in interpreting what constituted ―gross human rights violations‖ being guided by international human rights law. In the same vein, the Kenyan TJRC used its discretion to categorise women‘s experiences within the legal definition of ―gross human rights violations‖.Therefore both truth commissions used theirdiscretion in interpreting what constituted ―gross human rights violations‖ to accommodate women‘s voices. The truth commissions did not have to take similar approaches to accommodate the experiences of men.
In the South African context, the female commissioners and women‘s organisation insisted that the TRC adopts a dynamic and liberal approach that included sexual violence and other gender-based violence as acts of ―torture‖ and ―severe ill treatment.‖ The Amnesty
Committee was urged not to extend amnesty for rape (World Bank Report 2006:13 citing
Sooka 2004). 67 The legal mandate of the SA TRC required that it investigates gross human rights violations defined as killings, torture, abduction and severe ill treatment. These violations were viewed from a gender-neutral perspective. Since ―severe ill treatment‖ was not an internationally or nationally defined crime, the TRC defined it as:
Acts or omissions that deliberately and directly inflict severe mental or physical suffering on a victim, taking into account the context and nature of the act or omission and the nature of the victim.
The SA TRC took into account the following interdependent criteria in determining whether particular suffering was severe:
a) Duration of the suffering whereby the longer the suffering lasted the more likely it
qualified as severe
67 In the TJR Act itself excluded sexual violence including rape from any form of amnesty. The Kenyan TJRC however did not conduct any amnesty hearings during its lifetime.
164 b) Physical or mental effect whereby the more serious and permanent the physical or
mental effect then more severe the treatment
c) The age, strength and state of health of the victim. Where the victim is very elderly,
very young, weak or infirmed required less suffering or hardship to meet the criteria of
severe.
By applying the said criteria the following acts were regarded as constituting severe ill treatment:
1. Rape and punitive solitary confinement
2. Sexual assault, abuse or harassment
3. Physical beating resulting in serious injuries
4. People shot and injured during demonstrations
5. Burnings caused by fire, petrol, chemicals and hot liquids
6. Injury by poison, drugs or other chemicals
7. Mutilation including amputation of body parts, breaking bones, pulling out nails, hair
or teeth and scalping
8. Detention without trial or charges
9. Banning or banishment i.e. punishment inflicted without due process that consists of:
(a) The restriction of a person by house arrest, prohibition from being in a group,
prohibition from speaking in public or being quoted; or
(b) Of the enforced transfer of a person from one area to another without the right to leave
it;
10. Deliberate withholding of food and water to someone in custody with deliberate
disregard to the victim‘s health or well-being;
11. Deliberate failure to provide medical attention to ill or injured persons in custody;
165 12. The destruction of a person‘s house through arson or other attacks which made it
impossible for the person to live there again.
In paragraph 120, the final report of the SA TRC asserts that the above list is only illustrative and not exhaustive. It describes the above acts as those that have been recognised by international law. In the same vein, the SA TRC used the internationally accepted definition of ―torture‖ and ―abduction‖ to guide its work. The SA TRC defined torture as:
The intentional infliction of severe pain and suffering, whether physical or mental, on a person for the purpose of (1) obtaining from that or another person information or a confession, or (2) punishing him for an act that he or a third person committed or is suspected of having committed, or (3) intimidating him or a third person, or (4) for any reason based on discrimination of any kind. Pain or suffering that arises only from, inherent in, or incidental to, a lawful sanction does not qualify as torture.
In paragraph 111, the final report defines abduction as ―the forcible and illegal removal or capturing of a person.‖ Arrests and detentions were not included in this definition. However, forced disappearances were captured as abductions.
As with its South African counterpart, the legal language of the TJR Act is apparently gender neutral. However in its effect, the TJR Act treats women and men differently reaffirming their gender identities. Despite the legal mandate, most women who participated in the TJRC process testified outside the mandate; women spoke about issues that are not categorised as gross human rights violations. First, this may be attributed to the inadequate civic education and a general lack of understanding of the legal mandate of the TJRC.
For instance, on the first day of the Mombasa County individual hearings held on 19th January
2012, Ms. KK, a women‘s rights activist, testified about an attack against her and other women as they held demonstrations against drug trafficking and abuse in Mombasa. She said,
Three months ago, we were leaving from a meeting organized by the Prime Minister and we sat as women talking about drugs and women‘s problems. As I was leaving the car, we were attacked and thrown acid… God is big. The acid went on to the dash
166 boards and some drops entered my eye. I applied water but I felt a lot of pain. God gave me strength. (emphasis added)
The incident is indeed a human rights violation but prima facie it is not a gross human rights violation under the TJR Act and international human rights law. It is not a transitional justice issue occurring during the mandate period of the TJRC. During the interrogation session by the Commissioners, one asked:
Commissioner Shava: I am happy that there are many women in this public hearing. On this day when the event happened, what date was it? Ms. KK: It was on 25th October 2011. Again, the women‘s forum in Mombasa, Ms. E, an Assistant Secretary of District Peace
Committee, in total ignorance of the mandate of the Commission and in utter confusion of the roles of the numerous commissions in existence stated:
Nairobi is the reason for disturbance here in the grassroots. This time we have been told that the boundary in Mombasa County in Bamburi will be divided twice. We were happy as Kisauni was very huge; one MP was not enough. But they took Nyali area for the rich people and they added Kongowea for the poor. And they took Shanzu area where people from upcountry reside having bought or been allocated land by the government at times through corruptions and huge homes are found and Kisauni,where I am, you find Mjambere, Kashani, Unguja, Kolorado etc.
Politely, one of the Commissioners presiding over the women‘s forum advised her to submit her views on the boundaries to the right commission that is the Independent Electoral and
Boundary Commission.
Thus, in the course of the individual public hearings held in Coast region, the TJRC heard accounts on various violations some that stretched way before the 12th December 1963 when
Kenya acquired independence or way after the 28th February 2008 when the power-sharing agreement was reached.
167 Nonetheless, some staff of the Truth Commission raised a divergent perspective. They argued that these issues raised by women fitted squarely in the Commission‘s mandate. For example, the Director of Special Unit opined:
The problems shared by the women always fit in within the mandate of the TJRC. They speak about domestic violence, administration of justice how the police dealt with them, or the judiciary dealt or did not deal with them, so you know they are talking about land which is just the biggest issue in Kenya i.e. whether it‘s being disinherited by the father, or by the husband or husband‘s relatives… you know recently we had a case in Murang‘a of a teacher who was trying to buy land and that in the process her land was allocated to someone else. And when we followed through and asked why do you think this happened she said I think it is because I am a single woman… So these are the things we are looking at in terms of systematic discrimination. What are the issues that particularly affect certain people, groups… our mandate is very wide as the TJRC, so it is not limited to for example the post-election violence or massacres so the things that women speak are things that are within our mandate.
The application of the TJR Act and the resultant final report, divided the world as male and female. This was done through the categorisation of women‘s violations as systematic discrimination, unless they directly suffered the other forms of gross human rights violations defined by section 2 of the TJR Act. This standpoint is evidenced by the final report of the
TJRC.
The Commission described the status of women as related to cultural practices (dowry related violence, widow inheritance, FGM, early and forced marriage) and socio-economic rights
(poverty, employment, land and matrimonial property, education, reproductive health,
HIV/AIDS, leadership and political participation, conflict, forced displacement, state repression) using experiences of women from women‘s only hearings. Therefore, under the gross human rights violation of systematic discrimination against women, the Commission discussed ―all what is involved‖ in the lives of women.
Gender discrimination is hinged on the biological and social differences of maleness and femaleness. The social constructs of masculinity and femininity then result in power relations
168 between the two sexes where one sex dominates the other sex. Hence, gender discrimination is unequal/differential treatment due to gender. It refers to rules or actions treating men and women differently due to their sex and or gender i.e. maleness and femaleness. On the other hand, sex discrimination is differential treatment due to sex. However, theTJRC as evidenced in its final report viewed ―gender‖ as synonymous to ―women‖. Hence, chapter one of
Volume 2C of the Final Report, only discusses discrimination from the perspective of women alone and not both women and men. The TJRC secluded women‘s experiences in one chapter in volume 2C rather than integrating them throughout the final report alongside men‘s experiences. Despite the centrality of the principles of equality and non-discrimination within
Kenyan and international law, they are both deeply contested concepts (Edwards 2008: 12).
I attribute the approach of the TJRC to the add and stir methodology that it employed in incorporating feminist concerns from its inception to its culmination. The add and stir methodology involves an analysis of law to identify the areas in which women are missing or treated differently. After the research, the person using the add and stir methodology will then make a recommendations on what should be done to the law.The usual recommendation would be that the law be gender neutral and that where women are omitted they should be included. This method however does not criticise the law, its structure or embedded biases.In other words, existing rights are extended to women. It is also referred to as the additive legal approach.
In addition, the Commission is directed by the law to provide victims, perpetrators and the general public with a platform for non-retributive truth telling that charts a new moral vision and seeks to create a value based society for all Kenyans. The hearings conducted by the
TJRC consisted of truth telling from the perspectives of victims and the general public but not the whole truth of what occurred during the mandate period. The TJRC failed to provide an amnesty process and or to attract alleged perpetrators to record statements. As such, the entire
169 process documented in the final report was a one sided process involving only the perspectives of the truth of victims and the general public. Indeed, the Commission did summon persons adversely implicated in their hearings. The public officers who appeared before the Commission denied most of the allegations and gave no further information to assist the TJRC. For a holistic truth telling process, the Commission required the perspectives of the truth from the perpetrators and or persons adversely mentioned to establish an accurate record of violations during its mandate period.
5.2.3 Women’s Theory of Justice
For the women interviewed in the present study, the concept of truth-telling involved forgiveness and healing. Some of the views were:
Uncovering the truth helps one to feel better. The pain burns in your heart and talking the truth helps release the pain. Truth telling helps heal the wound in your heart. It also shows that you are not alone in the suffering. Uncovering the truth also helps those who are being told the truth. If they agree with the truth, then they can change things and make life better. But if they reject the truth, then there will be no change. Our leaders need to hear the truth from us so that they can help us. Even God wants the truth to be uncovered. The leaders should agree to be told the truth by people from the grassroots. Some of them fight and cause violence when they are told the truth. Truth is medicine (Ukweli ni dawa) Consequently, a platform where women could experience forgiveness and healing through a revelation of the truth from both the perspective of victims and perpetrators was essential for a conversation within the Commission that was women-centred.
On the other hand, the Commission defined restorative justice as repairing the harm done to victims and the greater community. Under section 5(e), the TJR Act required the Commission to find ways to redress victims for the gross violations of human rights they experienced.
Additionally, section 42 of the TJR Act stipulated the procedure for recommending reparation and rehabilitation of victims of socio-economic rights and economic marginalisation. So the
170 Commission envisioned itself as seeking social justice. The TJRC adopts the following meaning of ―social justice‖:
It generally refers to the idea of creating a society or institution that is based on the principles of equality and solidarity, that understands and values human rights, and that recognises the dignity of every human being…Social justice is based on the idea of a society which gives individuals and groups fair treatment and a just share of the benefits of society (Kenya. TJRC 2013 Vol 1, 1:45). Thus this is the manner in which the Commission envisaged the concept of justice. The women who participated in the focus group discussions conducted had a concept of justice akin to social justice and restorative justice. Women‘s concept of justice was not informed by retribution. When asked how justice for women should be secured, the participants of the focus group discussions said:
Justice for me is to be restored to where I was before the organized violence. It is to reclaim what my family and I had before the violence. We get justice if we are allowed to participate in politics and leadership. They should lower qualifications for leadership so that those who are not very educated can be able to take up leadership positions. The new Constitution offers us this opportunity. Even those who are not well read can contribute towards public life. One does not need to be educated to be a leader. Jobs should be secured for women victims. Therefore women‘s concept of justice involved an improvement and restoration of their lives.
They were not concerned about identifying, naming and or prosecuting perpetrators. All women who participated in the focus group discussions agreed that the truth telling process was particularly imperative. They revealed that the essence of truth telling should be so that the perpetrators can be forgiven and victims compensated for the violations that they had suffered.
5.2 The Impact of Normative Systems on Women’s Participation.
One key informant asserted that in the Coast region both Islam and culture had an impact of generating ―rules‖ that a woman‘s place remains in the private sphere and she could not speak in public arena. The key informant noted that cultural attitudes in the Coast region regarded women as property and therefore incapable of voicing their concerns on a public platform.
171 She argued that these cultural attitudes limited the degree of participation of women in public, national processes such as the TJRC. Interestingly, women in the group discussion disregarded culture as a factor limiting their participation. They instead indicated that women feared to participate; they were disregarded by society; and easily influenced by politicians.
Muslim women, especially those who conformed to cultural norms, also had to contend with religious barriers. The Muslim women who were disempowered to breakthrough both religious and cultural barriers remained silenced and inactive in public processes such as the
TJRC. Those who overcame the barriers were ridiculed and ostracised by men within their society. One woman in the Kwale County women‘s forum stated:
A woman in Kinango doesn‘t have a say…the men in Duruma and Digo say only they have a say. We who try to talk are labelled prostitutes. How do we help others who cannot accept being branded prostitutes? The research assumptions on hindrance of women‘s participation by existing normative systems were confirmed from the findings. In general, it was found that women failed to fully participate in formal peace processes such as the TJRCdue to cultural, social and religious constraints all stemming from a patriarchal society favouring the male gender. These hindrances limited women to the private sphere.
Women could either not contribute to the means of production or where they did contribute, directly or indirectly to the means of production, it was overlooked, underplayed and never rewarded as it was for men. In this particular case, the means of production refers to the formal peace processes. Interestingly, women engaged more though not equally with men in public processes on peace that were at local rather than national level e.g. through district/county peace committees, mediation meetings within the community and civil society or religious organisation initiatives at village level. These local processes are however not given pre-eminence in our capitalistic and patriarchal society as compared to the national processes.
172 From the three focus-group discussions that I conducted in Mshomoroni, Changamwe and
Likoni areas involving grassroots women, it confirmed that women in Mombasa are more actively involved in peace and reconciliation processes at the local level. One respondent asserted that some women had undergone a peace building training organised by a faith-based organisation. As part of the activities in peace and reconciliation processes, one respondent asserted:
We normally organise dialogue between conflicting parties i.e. the victims and perpetrators. We use the Bible and Qur‘an to convince parties to resolve their conflicts.
These women victims had gone to the extent of organising themselves into a community based organisation, now donor funded, through which they carry out peace building activities.
These findings support the theory expounded by Bouta that women are more active in informal peace processes but largely absent in formal peace processes (Bouta et al 2005).
Bouta explains that politics, the State, nationalism and the army are fundamentally masculine notions. They are characterised by patriarchal practices and values that are not easily changed.
As a result, many women choose to work outside formal politics, with civil society organisations and or with political parties that advocate social and political change. The
TJRC, more especially its statement taking and public hearings processes, may have failed to attract large female presence because their formality.
Other factors that impact on women‘s active participation were their gender roles within the family. The schedule of the individual public hearings made women‘s participation therein particularly difficult due to their family responsibilities. As described above, the individual public hearings were conducted from 9h00 to 18h00 interfering with women‘s gender duties of preparing meals for their families, fetching water, taking children to and from school. For single women who are heads of households the constraints on time and resources are more intensified. These women victims who are widowed, separated and or divorced live in abject
173 poverty and spend their days not only undertaking their traditional gender roles but also those normally assigned to men within the private sphere.
5.3.1 The impact of Gender Stereotypes on Women’s Participation
One (1) woman victim of the 1992 and 1997 violence whom I interviewed embodied the challenges of female heads of households. She shared that she was widowed. She revealed that during the 1997 violence her teenage daughter and herself were raped by members of the militia group. As a result, her daughter conceived a child. Not long after childbirth, her daughter died leaving her to singlehandedly fend for the child. Being a member of the
Mombasa IDPs group, she heard about the hearings of the Commission. She attended the
TJRC hearings in Mombasa County to present her views. Since she had not recorded a statement with the Commission she was advised to do so. She indicated that the queues for statement taking were very long. With her grandchild being unwell, she opted to take him to hospital rather than wait to issue her statement. The respondent was faced with the dilemma of either attending to her grandchild or recording a statement. Being a single parent, she made the choice of parental care over public participation. Due to her circumstances, she was unable to participate in the TJRC process.
Commissioner Tecla Namachanja expressed the constraints that women face in participation in public affairs. She asserted that the Commission ensured that all witnesses received an allowance to facilitate their attendance to the hearings. Hence limited financial resources was not the issue that caused low participation of women. Commissioner Namachanja said:
Women declined to actively participate because they feel as if these are serious issues of men. We see men there as our spokespersons. The issue has to do with culture. Women are not supposed to contradict what men are saying. A good wife is not supposed to defy her husband. It has more to do with gender roles that women have rather than economic factors. We normally facilitate our witnesses‘ attendance to our hearings. For instance women‘s role is in the kitchen. They have to prepare the home, get food ready, take children to school, fetch water and get dinner ready. The structure of the hearings makes it difficult for women to participate. The hours required for their attendance are
174 long considering their chores. Women would not want their husbands to find them away from home when they return from work.
However, women‘s involvement in these local structures which are informal remained unequal to men‘s involvement. In an interview with an officer from the National Steering
Committee on Peace building and Conflict Management (NSC), I found that the government had set up district and provincial (now county) peace committees after the post-poll violence.
The District Peace Committee (DPC) members are elected by the community. The standard guidelines for DPCs require that 1/3 of the members are women and at least one member to be from special interest groups e.g. person with disability. However in practice this does not happen. Most DPC members are old men who have a lot of time in their hands. This position was confirmed by another key informant who is a member of the Provincial Peace
Committee. She in fact indicated that the affirmative action policy has been used to limit the numbers of women to only the one-third.
The TJRC had no meaningful engagement with the District Peace Committees until at the report writing stage. In an interview with the Director of Civic Education, Mr. Elijah
Letangula, he stated:
Once in a while we engage with the district peace committees but we don‘t have a very elaborate structure on reconciliation because that is actually reconciliation and healing. We have not yet started the community dialogues. So there have been one or two but we have had our own informal meetings but not on the hearings. At the Coast yeah, yeah we have had our outreaches with them but we have not had an elaborate programme to engage the DPCs. A key informant that I interviewed from the TJRC had a different perspective on women‘s more active participation in the District Peace Committees. The Director of Special Support
Unit stated:
There is no preference for where women participate as long as it translates to direct benefit for the day to day life as they can see it…in Murang‘a where the issue is the Mungiki what is the peace committee doing there? It is like the peace committee is not dealing with the issue ...whereas in Isiolo where there is community ... there is more
175 likely to be recourse to the district peace committee where there are CSOs and others brought on board. Again also women are not…there is no deliberate effort to include women. Women can‘t participate in that space; it depends on the Convenor who is the DC, whether he or she is going to be deliberate about including women because women have spoken about not being included in the district peace committees. The TJRC has not engaged with the peace committees. The question then is why should there be ―deliberate effort‖ to include women in truth commission. Why then where men are concerned, inclusion in truth commissions is inadvertent and unplanned? The differential treatment of women and men as far as participation in the TJRC is concerned portrays that processes within the Commission are still not engendered.
Women in the focus group discussion gave varied reasons for their inactive participation in peace processes at all levels. The views were:
We are discriminated as people think that women cannot bring forth a worthy discussion. Women are only to be seen in the kitchen and to take care of the children. Women are not given opportunities in formal processes. Also, ethnic discrimination causes women from certain communities to be locked out of opportunities to be involved in peace processes. In the Coast region, only women in buibuis get opportunities to be involved in peace and reconciliation processes. Culture; women are not allowed to talk in public spaces. This hinders women from participating in TJRC processes. Men use propaganda to stop women from vying for leadership positions. Women are scorned and ignored.
Patriarchal notions can be attributed to the marginalisation of women in formal peace processes such as the TJRC. These notions affected not only the grassroots women but also the women within the formal peace structures. The then Acting Chairperson of the TJRC shared her own personal challenges as a peacemaker in a patriarchal society. She expressed her strategy of negotiating with patriarchy when what she needed to do was to forge peace between warring factions. She referred to her use of ―soft power‖ to accomplish what she wanted; that to bring peace she was ready to even kneel down to a man. She spoke of challenges within the private and public sphere. She very openly shared of the myriad of challenges she has experienced:
176 As a peace-builder you need to mediate. My first challenge was to bring youth to the negotiating table following ethnic clashes in Mt. Elgon. I was then working as Relief Coordinator for Victims of Ethnic Clashes in Western Region. To get the youth to the negotiating table I had to bring an elderly man on board. During the first meeting I could not sit on the negotiating table because I was a woman. I had to sit far away while I followed the negotiations. When there was anything that I thought needed my intervention, I would go to the table carrying a jug of water. I was ready to do anything so that we could find peace including kneeling down to these men. I call it soft power. We devise ways in which we can get things done. When I rose and I became the Coordinator of the organisation, many men could not still associate the success that I had accomplished with a woman. So they would call me Mr Tecla. I found that very offensive. Secondly is the issue of secondary trauma. As women we take things at heart. I experienced secondary trauma and did not even know it. It was only when I was informed of its symptoms that I realised that what I had was secondary trauma. There are some things you need to do that you cannot even share with your husband. One time I was told that I should wear a diaphragm as I go out to a certain area. We women are vulnerable. In one such mission I was allocated a room that also was used to dispense condoms. A man came way into the night asking for condoms. I told him he was stupid and sent him away. It was only later that I realised that the room was reserved for condom distribution. Lastly are children. I have two children, one who is two years. I got this job when he was only 1 month old. I remember reporting to the Ministry of Justice carrying my one month baby. The Minister Mr Kilonzo looked at me as if wondering who I was and how I got through the interviews! My children do not see me and it is difficult. I received a call from my first born, who is five years. Have you ever seen an old woman crying? We women have other responsibilities such as household and family responsibility that make engagement in peace processes very difficult. In one focused group discussion, grassroots women mentioned that their obligations to their families and husbands limited their participation in formal peace processes. One respondent recommended:
Men should be involved in these initiatives to increase women‘s participation so that they do not insist on having their wives stay home.
The views of this respondent are reiterated by Bouta who says that initiatives should be geared towards raising male allies to support women‘s agenda in the peace process (Bouta et al 2005).
177 5.3 Conclusion
The nature and level of women‘s participation in the TJRC processes was influenced by power dynamics and the law itself. In as much as the law provided an enabling environment for women‘s participation, it did not operate within a vacuum. A number of other factors came into play, which gendered the processes to the extent that women‘s participation was limited.A gender analysis of women‘s voices in the course of the TJRC processes reveals that most women spoke about their day-to-day experiences as women living within a patriarchal society. They did not separate their experiences under past repressive regimes from their daily realities. These daily experiences of women were not transitional justice issues needing the intervention of a truth commission.
Further, the law limited women‘s participation through its mandate, which only guided the
TJRC to address violations occurring in the public sphere against direct victims. The additive legal approach employed by the TJRC to incorporate women in these processes was ineffective in ensuring a complete and accurate picture of the history of violence was documented. As a result, women justified their presence in the TJRC through the special mechanisms implemented by the Commission e.g. the Special Support Unit, the women‘s only hearings and standalone chapters on women and gender based violence.
The experiences of women as secondary victims of the gross human rights violations remained invisible as women‘s stories were categorised as either rape/sexual violence and or systematic discrimination. Smart asserts that the employment of the additive approach stems from a misunderstanding of the social, gendered world. In addition, even well meaning intentions or institutional designs to promote participation of women, due to issues of power and difference may undermine the possibility of equitable, consensual decision-making
(Cornwall 2002:5).
178 Most women had limited ―power within‖ to overcome the societal barriers to participation in formal peace processes such as the TJRC. Women are socialised into relegating participation in public affairs to the periphery whilst focusing mainly on private, familial affairs.Indeed, women, as citizens, could have been proactive in claiming spaces for participation rather than waiting to be invited into the TJRC. However, participation in public affairs is still regarded as a male-oriented arena that has been slow to accommodate women‘s presence.
Consequently, women, especially grassroots women, were not found to claim or create spaces of participation within the TJRC but relied mainly on the invited spaces. Within some of invited spaces, invisible/internalised power was manifested through the normative systems that ostracized or created barriers for women who wished to participate therein.
179 CHAPTER SIX: THE POLITICS OF REPRESENTATION
1.0 INTRODUCTION
This chapter discusses and analyses the findings with respect to the third theme on the dynamics of representation of women within formalised peace processes such as the TJRC.
The concept of representation is complex. It is further obfuscated by the multi-layered identities of women who encountered the TJRC as Commissioners, witnesses or observers.
Under this theme, I discuss the representation politics around the Chairperson of the TJRC and its impact on participation of women. I then analyse the manifestations of power, which had an impact on whether ―herstories‖ were heard, acted upon and a gender perspective employed throughout the TJRC processes (Lukes 2005:22). Using the theory of intersectionality, I unpack the multiple identities and heterogeneity of women and how it impacted on women‘s perception of representation within the TJRC processes.
6.1 The Dynamics aroundthe Chairperson oftheTJRCand Its Impact on Participation.
In its report, the Task Force for the Establishment of a TJRC in Kenya stressed the importance of the Presidency appointing commissioners who were persons with integrity, sense of fairness, impartiality and able to lead a national conversation on healing and reconciliation. The TJRC faced numerous challenges, which mostly stemmed from the unsuitability of some appointed commissioners. The controversy around the Chairperson of the TJRC had a negative impact on public participation, civil society and donor engagement.68There were hence relentless calls from civil society organisations and the international community for the resignation of the Chairperson.
68Conflict of interest allegations were also levelled against Commissioner Maj-Gen (Rtd) Ahmed Farah concerning his possible involvement in the Wagalla Massacre security operations (TJRC Final Report 2013, 1/4: 143, 144). Investigations and a hearing were conducted which revealed that the Navy, in which Commissioner 180
Amb. Kiplagat had a direct conflict of interest with respect to the TJRC mandate (Kenya.
TJRC Report 2013, 1/4: 125). First, he was a beneficiary of illegal and irregular land allocations as named in the Ndung‘u Commission Report. Second, being a former Permanent
Secretary in the Ministry of Foreign Affairs he was a key witness to the events leading to the assassination of Dr Robert Ouko who was at the time of his demise the Minister of Foreign
Affairs. Third, he was involved in some planning meetings in Wajir that led to the Wagalla
Massacre by the government administration. This conflict of interest was in contravention with section 10(6)(b) of the TJR Act that stipulated that Commissioners should not have been
―involved, implicated, linked or associated with human rights violations of any kind or in any matter.‖ In addition, the irregular land allocations, political assassination of Dr. Ouko and the
Wagalla Massacre, wherein Amb. Kiplagat was implicated, were human rights violations that the TJRC would investigate.
Amb. Kiplagat denied all the allegations levelled against him and called for proof of his involvement. On the land acquisition, he argued that he had legally purchased the parcels of land. In addition, he argued that he was never involved in the assassination of the former
Minister of Foreign Affairs and he had cooperated with the inquiries established to resolve the issue. On the Wagalla Massacre, he asserted that he could neither recall whether he had ever been to Wajir nor whether he had attended any meetings there.69
Notwithstanding the calls for his resignation, the Chairperson of the TJRC declined to step aside. This refusal adversely affected meaningful public participation in the process. Many victims, their families and witnesses refused to engage with the Commission. The TJRC was
Farah was an officer at the time, was not involved in the Wagalla Massacre. In addition, the TJRC established that Maj-Gen (Rtd) Farah was out of the country prior, during and after the Wagalla Massacre. These investigations cleared Commissioner Farah. At the public hearing, the witness who implicated Commissoner Farah in the Wagalla Massacre publicly repudiated his statement and swore under oath that he had no knowledge of his involvement in the Wagalla Massacre.
69Later it was revealed that Amb. Kiplagat had attended a Kenya Intelligence Committee meeting in Wajir two days before the security operation that resulted in the Wagalla Massacre.
181 met with resistance and hostility when executing its mandate. A civic education tour of the
Commission in Coast region was met with demonstrations and protests at the presence of
Amb. Kiplagat. In public information sessions in Mombasa, Kwale and Lamu, civil society organisations and the general public walked out of sessions due to the Chairperson. Following this harsh reception, the TJRC had to abandon its outreach and civic education visits planned for the othe parts of the country. As has been discussed in Chapter Five, the inadequate civic education resulted in women participants submitting testimonies outside the mandate of the
Commission.
Similarly, some organisations took positive steps to paralyse the work of the TJRC (Kenya.
TJRC Report 2013, 1/4: 142). Others called upon donor agencies to deny support to the
Commission (Kenya. TJRC Report 2013, 1/4: 142). Only a few civil society organisations with a national outlook were ready to participate in the TJRC process e.g. Kituo cha Sheria,
Kenya Human Rights Commission, International Commission of Jurists-Kenya Chapter,
Gender Violence and Recovery Centre, International Committee of Red Cross, Catholic
Justice and Peace Commission etc. Consequently, the Commission did not have civil society support to conduct extensive civic education campaigns in the country. Strong women‘s organisations such as FIDA Kenya were in the periphery in mobilising women to engage with the TJRC. The TJRC was left to its own limited devices in mobilising and organising communities, and women, to participate in its civic education, statement taking, reconciliation forums and public hearings. The then Chief Executive Officer of the TJRC, Ms. Patricia
Nyaundi, identified the civil society disengagement as one of the main challenges in their work. Her sentiments were reiterated by Commissioner Namachanja who said:
Our main downside has been the civil society dealing with human rights issues. They rejected the Commission because of one person Bethuel Kiplagat.
182 In the same vein, the media shifted its attention from reporting on the spirit and rationale behind the truth-telling process to the controversy around its Chairperson. Consequently, many people were not aware of the mandate and rationale behind the truth telling process impacting on the nature and level of public participation especially amongst women. A senior officer of the TJRC in charge of civic education, interviewed in the course of fieldwork, asserted that:
…because of Kiplagat we were unable to engage… many people did not turn up due to the credibility issues of Kiplagat...
During an interview, Commissioner Tecla Namachanja succinctly expressed the quagmire and frustration of the TJRC and how it impacted on participation of the public and more specifically women:
The lack of credibility of Kiplagat and low funding derailed us for one year. We were denied funding for a year…. We could not get enough time for civic education. We hence may not have got the right people to engage in the process… We are (were) conducting hearings and writing the final report at the same time. The international partners could not deal with us. We are (were) still struggling with credibility issues. It took as time to gain the trust of Kenya in the process… In January 2010, the TJRC received documentation from civil society organisations incriminating Amb. Kiplagat. The Commission noted in its report that Amb. Kiplagat being in possession of relevant information would have to be called to give testimony to the TJRC.
Consequently, he could not be judge in his own cause (Kenya. TJRC 2013, 1/4: 126). This marked the beginning of a tumultuous journey aimed towards the removal of the Chairperson of the TJRC. In the report, the TJRC describes the stalement concerning the Chairperson as
―conflict of interest issues‖ and not internal conflict amongst the commissioners. It further reveals that there were numerous internal discussions within the TJRC on the course to take following the documentary evidence. The section hereunder delves into the establishment of a tribunal to investigate the Chairperson.
183 6.1.1 The Challenges around Removal of the Chairperson
The final report of the TJRC states that the Commissioners confronted the Chairperson and he agreed to be subjected to tribunal proceedings to answer to the charges levelled against him.
On 12th April 2010, all the nine Commissioners, including Amb.Kiplagat, wrote to the
Minister of Justice and Constitutional Affairs that a formal request should be sent to the Chief
Justice for the establishment of a tribunal in accordance with section 17 of the TJR Act. The role of the tribunal would be to inquire into the three areas of conflict of interest.
In the impasse, in April 2010, Ms. Betty Murungi first resigned as vice-chairperson and then later as a commissioner. Ms.Tecla Namachanja was elected as the vice-chairperson in the place of Ms. Betty Murungi. The President failed to fill the vacant position as was required under the TJR Act. Hence the TJRC was constrained to operate with eight commissioners.
On 15th April 2010, the commissioners, with the express consent of Amb.Kiplagat, filed a petition with the Chief Justice requesting for a tribunal to be established under section 17 of the TJR Act.70 On 9th September 2010, whilst the TJRC awaited feedback from the Chief
Justice, a coalition of civil society organisation filed their own petition requesting for a tribunal under section 17 to determine whether Amb. Kiplagat had engaged in any misconduct that rendered him unfit to hold office (Kenya. TJRC 2013, 1/4:128). On 16th September 2010, the Chief Justice responded to the letter by the coalition of civil society organisations indicating that a response had been given to the TJRC over the issue. This letter was copied to the TJRC. The final report indicates that in the letter to the TJRC there were included copies of previous letters by the Chief Justice forwarding the request for a tribunal to the Attorney-
General for his legal opinion (Kenya. TJRC 2013, 1/4:128, 129).
70 The Commission did not receive a response from the Chief Justice. Consequently, they wrote him another letter on 14th May 2010 inquiring into the status of their petition (TJRC Final Report 2013, 1/4: 128). 184 In the month of October 2010, Amb. Kiplagat admitted on national television that he was present on the 8th February 1984 planning meetings in Wajir conducted by the Intelligence
Committee. However, he denied that the agenda of the meeting involved security issues.
Instead he asserted that the visit to Wajir and subsequent meetings dealt with development issues. In the same televised interview, Amb. Kiplagat argued that the government cannot be held responsible for the Wagalla Massacre. By depicting the extent of bias with which he may deal with issues within the TJRC mandate, Amb. Kiplagat is reported to have said, ―I doubt, I find it extremely difficult, no government worth its salt plans to massacre its people‖ (Kenya.
TJRC 2013, 1/4:129). As the face of the TJRC and official spokesperson, his statements were weighty and portrayed that the TJRC processes may be prejudiced in favour of the government. Although the TJRC was a state institution, law and practice required it to exude independence and impartiality, which was essential to establish an accurate record of Kenya‘s past and hold state or non-state perpetrators accountable.
In the same month of October 2010, the Parliamentary Legal Affairs Committee heightened the pressure on the TJRC to address the Amb. Kiplagat controversy. They summoned the
TJRC for an update on the manner in which the controversy was being handled (Kenya. TJRC
2013, 1/4:129). The Legal Affairs Committee gave the Commission 72 hours to chart the way forward otherwise the Committee would move Parliament to disband the Commission
(Kenya. TJRC 2013, 1/4: 129).
The future of the TJRC was in a state of uncertainty. To avoid a parliamentary motion for disbandment, the TJRC moved to the High Court for a writ of mandamus to compel the Chief
Justice to appoint the tribunal. At the same time, Commissioner Prof. Slye issued notice that he would resign with effect from 1st November 2010 should the impasse not be resolved. On
29th October 2010, the Chief Justice announced plans to establish a tribunal under section 17 of the TJR Act to investigate Amb. Kiplagat‘s conduct. The notice establishing the tribunal
185 was gazetted on 1st November 2010 and dated 21st October 2010.71Immediately thereafter, the
Chairperson stepped aside to pave way for these investigations. The vice-chairperson of the
Commission, Ms. Tecla Namachanja, found herself at the helm of the TJRC.During the time that Bethuel Kiplagat had stepped aside, the Commission operated with only seven commissioners.
Commissioner Namachanja shared that when she came into office she had a huge task of regaining the faith of Kenyans to participate in the TJRC. She described that she used ―soft power‖ to win back the trust of Kenyans. The restored public confidence during
Commissioner Namachanja‘s tenure as Chairperson was shown by the large number of statements recorded and the appearances during the public hearings in the Coast region and the country as a whole.
The Tribunal had six months from the date of the publication of the Gazette notice to conduct proceedings and report their findings to the Chief Justice. The Tribunal faced a slow and turbulent start to finalise its work so that the Commission could engage with the public and more specifically women. It was only until mid-December 2010 that the Tribunal was properly constituted and ready to begin operations.Its initial time was spent setting up offices, drafting rules of procedure, advocating for funds from the Government and dealing with jurisdiction challenges raised by Amb. Kiplagat.72The Tribunal ruled against Amb. Kiplagat on the issue of jurisdiction. He filed an ex parte application for a stay of its proceedings of the
Tribunal and a further challenge of its jurisdiction in the High Court.
71The mandate of the Tribunal was:To investigate the conduct of the Chairman of the Truth, Justice and Reconciliation Commission, Ambassador Bethuel Kiplagat including, but not limited to, the allegations that the said Chairman‘s past conduct erodes and compromises his legitimacy and credibility to chair the Commission; his past is riddled with unethical practices andabsence of integrity; he has been involved in, linked to or associated with incidents considered to be abuse of human rights; is likely to be a witness in the same matters that the Commission is mandated to investigate (TJRC Final Report 2013, 1/4:131).
72The Tribunal dismissed Amb. Kiplagat‘s application and held that it had jurisdiction to investigate his past conduct as stipulated in the Gazette Notice No. 15894 that stated ―the conduct of the subject (Chairperson) during the period pre-dating the subject‘s appointment as a Commissioner and Chairman of the TJRC.‖
186 In March 2011, the Tribunal examined Amb. Kiplagat. On 27th April 2011, the High Court granted a stay of the Tribunal‘s proceedings pending the hearing of the challenge on jurisdiction. In the meantime, the six months period given to the Tribunal expired. The
Tribunal requested an extension of its life but the newly appointed Chief Justice, Dr. Willy
Mutunga, declined on grounds that it was a misuse of national resources. Thus the Tribunal never investigated Amb. Kiplagat‘s conduct and was unable to advise the President through the Chief Justice on his suitability and credibility to serve in the Commission.
In December 2011, when the High Court was expected to hear arguments in the case challenging jurisdiction of the now-defunct Tribunal, Amb. Kiplagat voluntarily withdrew his case. The TJRC opted not to oppose the withdrawal as it lifted the stay on the Tribunal. Their strategy was to then pursue a renewal of the mandate of the Tribunal with the Chief Justice.
The tribunal was neither reconstituted nor extended. The challenges around the investigation of the Chairperson showed the hidden power of non-reformist state actors who frustrated the truth-telling process to undermine its credibility and effectiveness in executing its mandate.
Under these circumstances, the Chairperson, who had actually testified before the
Commission during his temporary absence, resumed his position at the helm of the TJRC when the hearings were ongoing.
6.1.2 The Re-assumption into Office by Amb. Kiplagat
On 4th January 2012, Amb. Kiplagat returned unannounced to the TJRC national offices. The
TJRC was preparing to conduct the public hearings in the Coast region. There was fear that the presence of Amb. Kiplagat would again negatively impact public participation. The final report reveals that Amb. Kiplagat demanded access to documents related to the Report including those in which he had a conflict of interest. He indicated that he had returned ―to shape the final report‖ (Kenya. TJRC 2013, 1/4: 132). The final report adds that these
187 demands were resisted by the Commission‘s staff as they contravened the laid down procedure for access to confidential documentation.
As a result of Amb. Kiplagat‘s sudden return, stakeholders and donor agencies who had re- engaged with the TJRC during his absence defected and or withdrew commitments of support. In addition, civil society organisations threatened to hold peaceful demonstrations to bar Amb. Kiplagat from attending the public hearings that were due to be conducted in Coast province. There were uncertainties as to whether the Coast region public hearings would actually be conducted. In Nairobi, survivors and families of victims of the Wagalla Massacre held public demonstrations at the TJRC national offices protesting the return of Amb.
Kiplagat.
On 6th January 2012, the TJRC wrote to the Chief Justice to either reconstitute the defunct
Tribunal or appoint a new Tribunal to proceed with the investigations. 73 On 10th January
2012, the TJRC, vide Nrb HCCC Civil Case No. 7 of 2012 Truth, Justice and Reconciliation
Commission –vs- The Chief Justice and Bethuel Kiplagat, returned to the High Court requesting for an order to prohibit Amb. Kiplagat from returning to the Commission unless a competent tribunal had addressed the allegations in its April 2010 petition. The ruling was delivered on 24th January 2012 by Justice Mohamed Warsame. The Honourable Judge ruled against the TJRC on grounds of technicalities rather than the substance of the case. The learned Judge ruled that the suit was not properly in court. The court added that due to the subject matter and parties involved the suit ought to have gone through the Attorney-General.
The court acknowledged that even though this was not a requirement under the TJR Act, independent commissions such as the TJRC should seek the opinion and advice of the
73The final report expresses the difficult situation of the Commission by stating as follows: ―The Commission was concerned about his [Amb. Kiplagat] clear intention to ignore any and all Commission procedures to preserve the integrity and confidentiality of the information entrusted to it. The Commission was particularly concerned about the confidence and security of the over 40, 000 Kenyans who had trusted and engaged with it… ―(TJRC Final Report 2013, 1/4:132).
188 Attorney-General prior to instituting suits. He noted that ―there could be flaws and lacuna in the way [Kiplagat] is going back after he agreed to step aside for allegations against him to be investigated and determined‘ and that ‗none of the allegations [against Amb. Kiplagat] have been considered and determined.‖ He went further to interpret section 17 of the TJR Act holding that any tribunal, if it was to be constituted, had no powers to investigate Amb.
Kiplagat‘s past conduct. The reasoning of the learned judge differed from that of the defunct
Tribunal and the former Chief Justice who stipulated the jurisdiction of the Tribunal in the
Gazette notice. The judge made an order as to costs in favour of Amb. Kiplagat.
Notwithstanding that the Commission was a body corporate that had sued in its legal capacity, the learned judge ordered that the commissioners, in their individual capacity, should pay costs.
In March 2012, the TJRC lodged an appeal against the ruling of Justice Warsame. In the appeal they sought for a temporary injunction under certificate of urgency to restrain Amb.
Kiplagat from gaining access to the Commission‘s office until the appeal had been heard and determined. The appeal was never heard in the course of the existence of the TJRC. Hence,
Amb. Bethuel Kiplagat was conferred with legal right to continue holding office irrespective of the allegations of conflict of interest that had been levelled against him.
In its final report, the Commission discloses that modalities were set for Amb. Kiplagat‘s participation during the remainder of the life of the TJRC. The final report reveals that in as much as the commissioners would comply with the decision of the court, they would not deal with Amb. Kiplagat directly, unless the conflict of interest issues were addressed by an independent process. This position was reflected in a press statement by the other TJRC commissioners released on 27th February 2012. Some critics argued that this position reflected internal conflicts within a commission tasked with promoting reconciliation in the country. In
189 as much as the final report and commissioners that I interviewed indicated that there were no internal ―wrangles‖ or any personal disputes between themselves and the Chairperson, the
―outsider‖ perception held by majority of Kenyans was that there was an unresolved internal dispute that tainted the image of a Commission charged with promoting reconciliation. More specifically, Prof. Slye argued:
I have never understood the peculiar Kenyan use of the term ―wrangles.‖ Some of what people were referring to there was the controversy around the conflicts of interest presented by our Chair. I am not sure there were any ―wrangles‖ there. We underwent an extensive series of conversations internally concerning how to address those conflicts of interest; we all (including the Chair) agreed on a process; and then we pushed ahead with that agreed upon process... Even though there may have been no ―wrangles‖ within the TJRC, there is no doubt that there was a longstanding conflict raging within it. The conflict had an impact on the level of success of the TJRC both internally and externally. The dynamics surrounding the
Chairperson had a significant impact on the manner in which women and men viewed the
Commission and participated in its processes.
The perception of divisions within the Commission was also felt internally at the secretariat level. One senior staff member shared her sentiments during an informal conversation about her experiences working in the Commission. She noted that there were perceived differences amongst the commissioners that stemmed from ethnicity, political affiliation and place of origin (i.e. international versus national). She mentioned that these differences made working in the TJRC particularly difficult as any association with a commissioner was interpreted by other staff as correlating with his or her faction.
The politics concerning the suitability of the Chairperson of the TJRC impacted greatly on public participation within the Commission. For women, it caused inadequate civic education that then rendered most of women‘s testimonies and herstories inapplicable with respect to the legal mandate of the TJRC. Furthermore, the TJRC mostly failed to engage with women who
190 had been direct and or secondary victims of gross human rights violations. Instead most of the women who testified were associated with community or human rights based organisations, also gatekeepers. This is attributed to the ineffective civic education.
Similarly, the politics of representation around Amb. Kiplagat steered the national narrative around the TJRC to the said Chairperson. As such, majority of the women who had heard about the TJRC were only aware of the controversy of the appointment of the Chairperson rather than the spirit, legal mandate and role of the TJRC. The lack of and or limited awareness on the TJRC amongst women impacted on the extent and nature of their participation.
6.2 The Rules of the Game: The Case Selection Rules and Their Effect on Women’s Participation in the TJRC
A growing body of research on Latin America, post-communist Eurasia, Africa, and Asia suggests that many ―rules of the game‖ that structure political life are informal—created, communicated, and enforced outside of officially sanctioned channels. Helmke and Levitsky
(2004: 725) assert that a good institutional analysis requires rigorous attention to both formal and informal rules. In terms of distinguishing between formal and informal rules, the study uses Helmke and Levitsky‘s theory which states that the informal rules are norms which are self-enforcing while formal rules are enforced by a third party, often the state (Helmke and
Levitsky2004: 726).
According to the Director of Research Unit, Mr Japheth Biegon, the Commission pre-selected
―window cases‖ that reflect the violations that were reported from the region. The case selection process was neither provided for in the TJR Act nor the Hearing Procedure Rules.
Thus the Commission through its Secretariat formulated informal, unwritten rules that determined the manner in which cases would be selected for the public individual hearings. It was imperative to analyse the rules of the game to shed more light on women‘s participation.
191 Hidden power, as defined by Gaventa, was observed when Commissioners influenced which witnesses (or window cases as the TJRC conceptualised these life experiences as such) would be given a platform to be heard. The witnesses who took the stand would then definitely impact on the nature of information gathered by the TJRC and finally the contents of the final report.
Commissioner Slye revealed that the Commissioners were not directly and or formally involved in the selection of ―window cases‖. However, he alluded to the fact that some
Commissioners exercised hidden power to lobby for particular witnesses to testify during the public individual hearings. Commissioner Slye shared:
The Commissioners had very little involvement in the selection of cases for public hearings. At least there was no organised involvement. Individual commissioners sometimes lobbied or insisted on particular witnesses. It was found that one Commissioner insisted in including one Mr. KB as a witness for the
Mombasa County public individual hearings. Mr. KB is of Arab origin and from an affluent and politically prominent family in Mombasa County. Mr KB needed prompting to participate in the hearings; he was permitted to testify prior to recording a statement with the
Commission. In his testimony, he contended to have been a victim of torture during the 1997 political violence.
Ordinary women and men were excluded from the decision-making process concerning what is ―representative‖ of violations within their county, the nature of conversation to dominate the public hearings and the identity of victims to participate therein. The Commission, within the closed spaces of its National office‘s boardroom, exercised hidden power over by determining the issues to be discussed, included orexcluded and conversations to be sustained during the public hearings stage and beyond.
This finding was established during an informal conversation with officers from the Coast
Regional Office of the TJRC on the Mombasa County public hearings who felt that the list of
192 witnesses selected to testify were not representative of violations in the county. The indigent, including both women and men, yet mostly aggrieved victims of the 1997 political violence were embittered about their exclusion from the list of pre-selected cases for the public individual hearings. The internally displaced persons (IDPs) who were victims of both the
1992 and 1997 political violence had recorded statements with the Commission in advance. In addition, many were integrated IDPs who were living with well-wishers in abject poverty having lost their homes, property and businesses during the 1992 and 1997 political violence.
The Chairperson of the IDPs group expressed his predicament:
The TJRC came to take statements from us…We were informed of the hearings in Mombasa and I mobilised 200 of our members to attend the hearings. Despite this effort, I was not allowed to testify in the public hearings. I asked our women to try and give evidence in the women‘s hearings and at least some of our members were heard in the Mombasa women only hearing. We wanted to protest at the refusal of the TJRC to allow us to testify. The person who was in charge is called Husna. She only let her Arab people testify. Husna was a statement taker in the prisons; she did not know about what was happening…Someone discouraged us from protesting saying that the following day there may be time for us to testify. There was no time; we were never heard and yet we gave statements…Later I saw that there was a slot for IDPs thematic hearings. Through the help of Titus, we prepared a memorandum and sent the same through the Mombasa TJRC office. We were never called up to date. Our voices were not heard. Instead they gave an opportunity to Balala (KB) to speak. What does Balala (KB) know? He was there just because of Commissioner Farah. I do not know what has been the fate of our documentation with the TJRC. I do not know how they were selecting people to testify in the hearings…we had written statements and availed ourselves for the hearings. A member of staff of the Regional Office in Coast confirmed that the Mr. KB was specifically invited to participate in the public hearing space as a matter of special interest to the TJRC due to his involvement with the Islamic Party of Kenya during the Moi administration.
In some instances the selection of individuals to participate in the public hearings involved pulling strings in the unseen and closed spaces of the Commission. Entry into such closed spaces was prohibited to the public. These closed spaces were taken behind closed doors by high-ranking staff of the TJRC (Gaventa 2002:2). They were unwritten and uncontested by civic actors. Due to the informality of the rules of the game the case selection process was marred with irregularities, bias, unfairness and gender inconsideration. The outcome of such a
193 process was gender imbalance, lack of accountability and transparency and exclusion of the powerless. However, victims who felt aggrieved by the pre-selected list of witnesses would claim these spaces by demanding hearing from the TJRC (Gaventa 2006:27). The claiming of these spaces was done by loud protestations and sometimes demonstrations including interrupting the public individual hearings for an opportunity to testify.
The sense of dissatisfaction was also expressed by the statement taker who had recorded the statements of members of the IDPs group. At the time of the Mombasa County hearing, he was the Assistant-Coordinator of the Coast Regional Office. He admitted that the Coast
Regional Office as led by his superior conceded power to control the public hearings‘ witness list to one Husna, a statement taker on a renewed short-term contract. In an in-depth interview with the researcher he divulged:
…Mombasa had the worst public hearings…The list of witnesses changed on the day of the hearing. The public hearing ended up being a platform for only the Arab community. In the hearing list, the place of victims dispossessed of land in the Mwebelegeza Settlement Scheme was taken by one Shamsan, a land rights activist. One Rosemary took the place of Eliathar…We cannot face the members of the IDPs group to date. How could our Coordinator allow a lady to shortchange us. We were not careful. To date their Chairperson cannot call me…. The Final Report details the manner in which the TJRC selected window cases for the public hearings. It states:
Due to the large number of statements and memoranda received by the Commission, it was impossible to provide a public platform for all individuals who wished to testify. Only a small percentage of victims were given the opportunity to testify…Three departments-Legal, Investigations and Research-were involved in the selection of the cases. The Research Department prepared for each region a general background report describing the regional trends and patters of human rights violations. The investigations search through statements and memoranda in the regional reports for potential window cases. This was followed by the interviewing of potential witnesses and narrowing down their number and findings submitted to the legal department. The Legal Department assessed the cases further depending on the suitability of a case prepared a final list of window cases. The Regional Coordinators and Statement takers were also invaluable actors in the process because of their knowledge of their respective regions and the issues most important to the local community. The Commission also profiled events and violations thought to have particular relevance to the national narrative about gross violations of human rights (Kenya. TJRC 2013 Vol. 1: 126, 127)
194 The role of the Regional Coordinators and Statement Takers in selection of cases as espoused in the Final Report did not occur in the ground as far as the case of the Coast region is concerned. The Regional Coordinator did not have information on which window cases had been selected prior to the date for the public hearings. There was no consultation between the
TJRC national office and the regional office on the case selection despite the statement taking having been conducted by the latter. Using the Arnstein‘s ladder of participation, the case selection process can be termed as domestication whereby control was given to the national
TJRC office‘s Department of Legal, Special Support, Investigations and Research. Under domestication, the planners use pseudo-participatory techniques such as statement taking and yet remain in control on which of these statements is shortlisted for hearings. In some instances, the statement taking was used in a manipulative manner as in some instances it was not a consideration for a case to be selected for hearing.
It was found thatthe Commission applied a top down approach in compilation of the cases for public hearing. The case selection process took place in the Head Office of the TJRC. The
Legal Department of the Commission would compile the list for witnesses in Nairobi and share it with the Regional Coordinator. I spoke to the Director of Research who further expounded on the selection criteria of cases for public individual hearings. He stated:
It is three units that participate in case selection, actually four units that is the Investigations Unit, Research Unit, Legal Unit and Special Support Unit….the Research Department prepares a background paper for instance Mombasa …. covering literature that speaks about violations in Mombasa. So we deliver this to the Investigations Department, which now goes through statements based on research that we have done and statements that they have delivered. So they pick like a hundred statements. They go to Mombasa and while there they visit these specific individuals who recorded statements with us and then interview them and see whether their information is credible, whether they really suffered the violations then in that process the number is reduced to maybe fifty or so. Then they come back then Special Support Unit, Legal, Research and Investigations again we sit down and do the case selection trying to balance gender, nature of violations and the issues to be covered. Because in Mombasa we can come and listen to fifteen people yet 500 people gave us to their story. So it is explaining to them that it is only for the purposes of getting a picture of the nature and trend of violations in the region. So what we choose are window cases that reflect the broader pictures outside there.
195 Consequently, using just one day or thereabouts for hearings, desk research and a week of investigations on the ground to select ―window cases‖ in any truth commission is inadequate to establish a proper picture and record of violations that the region has experienced. The selection of case process, just like the statement taking process, transformed the TJRC into a judicial body seeking ―proof‖ and verification of victims‘ experiences. Through these unfair informal rules of the TJRC on selection of cases, the Commission staff operated behind the scenes and made decisions on which individuals or particular organisations got limelight of delivering their testimonies during the individual public hearings and thematic hearings.
Most of these cases selected for the public hearings did not involve women. Consequently, the number of women who testified in the public individual hearings was lower than that of men.
6.2.1 Analysing Representation in the Case Selection Rules
The TJRC asserts that through the process of selection of window cases, violations that are representative of the violations in particular area were selected. The concept of representation is very complex and problematic. There have been a number of scholarly debates on representation and what it actually entails. Pitkin identifies four types of representation asserting that only one i.e. ―acting for representation‖ is the authentic kind (Pitkin
1967:224). She defines acting for representation as a relationship between the represented and representative where the latter is more responsive to the needs of the former. Itmeans,
―the wishes of the represented and the action of the representative will converge‖ (Pitkin
1967:163-165). According to Pitkin, convergence between representative and the represented is realised when: firstly, the represented give the representative a clear mandate stipulating what s/he should do and secondly, where the representative are given mandate to act independently on behalf of represented as trustees (Pitkin 1967:163-165).
Pitkin defines ―formalistic representation‖ as ―the formal bestowing of authority onto a person to act for others or where a representative is held to account…for what s/he
196 does…leaving no guarantee as to the quality of representation that is provided‖(Pitkin
1967:55-59). ―Symbolic representation‖ consists of symbols that are usually arbitrary hence the quality of representation is dependent on the represented‘s attitudes and beliefs which may be open to manipulation by representatives (Pitkin 1967:100). A good example of symbolic representation is whereby women may be persuaded to be symbolically represented by male representatives (Childs 2006; Mansbridge 1999; Phillips 1995). Finally, descriptive representation is whereby ―the representative stands for the represented due to similarities in characteristics or connections between them‖ under the pretext that the correlation in characteristics will inevitably mean that the actions of the representatives will stand for the represented (Pitkin 1967:61). Pitkin argues that descriptive representation results in a focus on the composition of organisations or institutions (in this case, which sex/gender is present) rather than its activities (what do they do) (Pitkin 1967:226). This problematizes representation as the representative cannot be held accountable for what he is but only what he has done. Also, the factors that require representation are not always clear (Pitkin
1967:87).
In analysing the selection of window cases that are representative the question arises is whether the TJRC had a clear mandate from women represented in every particular county in which public individual hearings were conducted. The form of representation applied was symbolic where the TJRC presumed to represent the views of women through the female participants of a particular county in selection of ―window cases‖. From interviews with respondents present during the hearings, the community didnot find the choice of cases and participants to have been representative because the selection was not conducted through a consultative, transparent and democratic process.
I spoke informally to one of the statement takers from Mombasa and an officer of a community based organisation in Mombasa that was observing the hearings. They both thought that the cases heard during the individual hearings were not representative. According
197 to the statement taker, who also mobilised participation of women and men in the hearings, there were better cases amongst the statements and memoranda recorded that best reflected the violations of the residents of Mombasa area. In addition, the officer from the community based organisation asked me during our informal conversation as we followed the individual hearings:
How many people do you think live in Mombasa? It could be over 1 million residents. So how can fifteen people be representative of the residents of Mombasa. The Commission is reported to have received a total of 3, 547 statements (1079 from women and 2455 from men) from the entire Coast region. In addition, 255 memoranda were received from the Coast region. The final report does not disclose the number of statements received per county. Nonetheless, the trend was that the TJRC heard on average 15 witnesses in its public individual hearings in every county; on average 4 of these witnesses were female.
Through its public hearings in the Coast the Commission heard on average from 90 witnesses of which 24 witnesses were female; on average only twenty-seven (27) per cent of the cases selected were from women. These were drawn from the 3, 802 statements and memoranda from the region. The numerical representation translates to only 2 per cent of the statements and memoranda submitted to the TJRC. The TJRC deduced for hearing only 2 per cent of its statements and memoranda from the Coast region.On the whole, the TJRC‘s public individual hearings cannot be described as representative based on the number of the statements and memoranda that it had received.
The descriptive representation of women in the public individual hearings was considerably lower than that of men due to this informal case selection process. More importantly, women‘s presence in the public hearings cannot be representative of the statements and
198 memoranda that the Commission recorded. For instance in the Mombasa hearings, women were represented by three female witnesses.74
6.2.2 The Multiple Identities of Women
One of the female witnesses represented the multiple dimensions of differences in women‘s lives as she shared her experiences as a woman from a migrant community in Coast region and living with disability.75 The other female witness testified to be a representative of the
Kenya Muslim Women Alliance. Therefore she represented women from her own life experiences as a Muslim woman of Arab origin. Despite associating herself with an organisation whose membership is drawn from mainly Muslim women of Arab origin she asserted that:
Our women problems are the same. I have not come to only represent Muslim women. Us women our problems are the same. The exercise of hidden power of the TJRC had the effect of closing spaces for participation.
In fact, through this irregular case selection process, the Commission locked out genuine cases that fell within its mandate in favour of cases that were not transitional justice issues e.g. dismissal from employment complaint in favour of 1997 political violence.
TJRC officers insisted that emphasis should not be placed on the numbers of people being invited to testify, whether men or women, but rather whether the nature of violations they speak paints an accurate picture of the injustices that men and women in that region experienced. By arguing so, the TJRC referred to strategic or substantive representation within the public hearings. In putting forward this perspective, the Director of Research Unit said:
…we don‘t want to be rigid in terms of numbers that if we have four women testifying then we should have had four men testify. I think that defeats the entire notion of trying
74 One lady living with disability from upcountry community, an Arab woman working for a community based organisation and a representative of Life Starters Group i.e. victims of 2007-2008 post-election violence from upcountry community 75See Table 4 199 to capture the trend of violations… so I don‘t think that internally we have had discussions about whether really it is about how many women have testified and thereby this number of women should therefore testify. Our main criteria is how are the violations and are the issues in that region well articulate and represented by the cases selected. So if it is representative of the violations then that is okay. But in addition to that that is why we have the women‘s forum. So if it is about numbers then we can say that women have spoken more to the Commission than men because in the women forum the women are just, the Commissioners come and women are allowed to come and speak. So if it simply about numbers I think personally we lose the point and we say that women have been more represented because we have a women specific hearing which men do not have. So I think the emphasis should be have the issues been represented. Then about those issues; is there a women‘s voice in those processes. The assumption was that other women would feel that their interests would be represented by other women being in the TJRC. I was alive to the fact that descriptive representation does not automatically translate to strategic or substantive representation. I therefore directed myself into looking at whether the feminine presence within the TJRC would translate into feminist activism rather than the views of ordinary women on this numerical representation.
The collective representational rights through reservation of seats for women within the
Commission were part of the bargain struck to achieve democracy and social justice.
However, critics say that group representational rights may increase in-group inequality, benefit the already affluent and worsen social divisions (Htun 2004). In fact, it was found that despite the feminine presence in the Commission, women at the grassroots represented in the focus group discussions, remained cynical that their interests and needs would be addressed.
The respondents‘ sentiments insinuate the existence of in-group inequality among women of different social and academic status. One female respondent in the Mshomoroni focus group discussion said:
What does a woman in Nairobi know about the problems of a woman in Kisauni? These positions should go to grassroots women…Even in the villages we have graduates and we should be given a chance to lead…
It was found that effective representation was only possible where the representative had undergone a similar experience as that of the represented. From a radical feminist standpoint, only women could provide adequate representation for other women. Again, women must be
200 viewed from a heterogenous perspective where multiple differences and identities are at play.
The social divisions amongst women as a group were cited as ethnicity, religion, class, social status, disability, ageand victimisation. These multiple, complex identities and differences in the woman interact within their lives and had an impact on their interactions within the political space. For instance, women victims found that women present within the TJRC were unsuitable representatives as they were either from a different ethnic community, class or were not victims of violence. The women victims from the focus group discussion held in
Likoni and Changamwe areas asserted that representation by female non-victims in the TJRC was insufficient; as women victims, they needed to be represented in transitional justice systems for their interests to be considered. Their ethnic identity and victimhood superseded their gender identity in that particular ordering. They stated:
The TJRC can only bring peace if women from different communities are involved and especially if victims are given an opportunity to participate.
..Women victims have not been represented in transitional justice systems. Those who have lost know what is best. How can a person who is full talk to a person who is hungry? (Aliyeshiba hamjui aliyenanjaa) Transitional justice processes should be designed for women who are victims of the post-election violence…We are the ones who can preach true peace and reconciliation.
A woman living with physical disability who testified in the women‘s only hearing reflected the intersectionality in the lives of women and the multiple, competing identities that women hold. She insisted on seats in Parliament being not only reserved for women but for women with disability. She further asserted that these women with disability should be elected only by persons with disability and not the rest of the Kenyan population. She said:
In politics we are discarded. We have been given 48 seats for women but I do not know if there are any for persons with disability. They should be given their own seats. In the seats given, we want to chose our representatives ourselves and not together with other women. Only persons with disability will know whether their own is a bad person or not and whether they can lead. In the Constitution they say you must have a degree or what other upuzi (nonsense); one may have the degree but cannot lead. There are persons with disability who are not educated but can be good leaders. I want a seat in Parliament but I am told that there are some people who have already been chosen. We do not know who chose them and how they were chosen.
201
In the same vein, the ethnic identity of women was prominent. As a result, women did not consider themselves involved in the TJRC process where they were not ethnically represented. The system of ethnic discrimination has been so profound in Kenya that majority of women seem to first and foremost identify themselves with their ethnic community rather than their gender identity. In the focus group discussion conducted, women shared that:
Ethnic discrimination causes women from certain communities to be locked out of opportunities to be involved in peace processes.
The TJRC can only bring peace if women from different communities are involved and especially if victims are given an opportunity to participate within the Commission. We specifically want female victims of post-election violence to be involved in transitional justice processes. We should be the ones to educate the communities about peace; we know what it means not to have peace more than anyone else. The statement takers in Mombasa are all from one tribe; they should have given the positions also to other tribes.
Women viewed themselves primarily as members of a particular ethnic community, then a certain social class, religion, political party member and finally a particular gender. The gender identity was a secondary consideration. Women seemed to be impassive to their gender identity as compared to other identities especially in relation to representation.
For instance in Peru, the CVR found that majority of the women victims were Quechua speakers, indigent, illiterate and marginalised. The CVR found that indigenous and indigent women were forced to undergo sterilisation under a family planning programme implemented by former President Fujimori. Under this programme, over 200,000 indigent women from indigenous communities and rural areas in the Andes and Amazon were sterilised without proper and informed consent. Some were threatened with fines, imprisonment or withdrawal of State food aid if they failed to undergo sterilisation. Like its Kenyan counterpart, the CVR noted that double discrimination faced by women on account of their race and gender.
However, it did not provide an intersectional analysis of the female victims vis-à-vis women from other racial, social and political backgrounds.
202 An intersectional analysis of the multiplicity of discrimination is important, as women cannot be viewed as a homogenous group. The complex identities of women are brought forth in their interaction within the spaces for participation in the TJRC. These differences, whether real or perceived, greatly impact on whether women from a certain social class will perceive themselves as being represented by women from a different social class. Consequently, the
TJR Act in requiring representation of women simplifies ―the woman‖ as a human being with a single identity-the gender identity. Furthermore, the TJR Act conceptualises all women as being the same. The concept of sameness defies the intersectionality of the multiple dimensions of difference within the lives of women. The construction of the law ratifies invisible intersections that actually underlie the social divisions and competing agendas within political movements for increased equality (Cho et al 2013: 802). The law reinforces social divisions by actually envisioning the middle class, urban, educated woman from a dominant ethnic community as representing all women.
The issue of difference was also brought forth in the discourse for reparations amongst women. It was found that women who were directly affected by electoral violence wanted only monetary reparations; they felt that communal reparations would benefit other women who were not survivors of violence. During a focus group discussion, a victim of 2007/2008 post-election violence stated:
We want monetary compensation. We prefer individual reparations so that we can restore our lives. Communal reparations will benefit even those who are not victims.
The intersectionality of ethnicity, class, gender and political affiliation in relation to participation in public processes subtly reveals itself through the voices of women in the grassroots. Interestingly, women in key leadership positions within the TJRC remain unaware of the politics of representation. In my interview with the Commissioner Namachanja and
CEO of the Commission, they both said that no negative in-group differences amongst
203 women had been revealed to the extent of hindering women‘s participation in the process. On ethnic differences, Commissioner Namachanja shared:
I cannot tell whether women did not participate due to ethnic differences between themselves and the Commission. Actually, I do not see how. The statement takers were drawn from their community. The Regional Coordinators were from those areas. For instance the Regional Coordinator for Coast is originally from the Coast, the same also for regional coordinator in Rift. We employed affirmative action.
6.3 Descriptive Representation versus Substantive Representation
Feminists have conceptualized descriptive and substantive representation as ―being like‖ and
―acting for‖ or ―speaking for‖ women (Phillips 1995; Mansbridge 1999; Pitkin 1967:63).
Proponents of descriptive representation stress on the reassurance that the representatives would do and act as the represented. Descriptive representation is viewed as a way of avoiding representatives from taking care of their own interests rather than those of their represented. There is a definite link between women‘s descriptive and substantive representation. Pitkin argues that emphasis should be on what representatives do rather than what they are (Pitkin 1967:63). Phillips argues that the sex of the representatives may impact on how they act-whereby female sex may result in women‘s substantive representation
(Phillips 1998). The rationale is that women have specific knowledge and experience as women to make successful claims for women. However, this should not be all that matters as men too may be actors crucial for substantive representation as women may not automatically act in the interest of other women.
The TJRC emphasized on descriptive representation, which position was informed by its constitutive law. The TJR Act and its Gender Policy directed the Commission to ensure that all appointments were done with due regard to gender equality and balance. To a large extent, the TJRC complied with the statutory requirement of gender balance. The final report describes the underlying reason for the requirement as stemming from studies that show that
204 having more women on the staff of the commission make it less alienating for female victims
(Kenya. TJRC 2013, 1/1:33). The gender factor was applied in key processes of the
Commission that involved direct interaction with victims e.g. statement taking, leading evidence in public hearings etc.
Due regard to the principle of gender equality was applied from the top of the hierarchy of the
TJRC to the bottom. Section 10 of the TJR Act provides that in appointing commissioners, the selection panel shall have regard to the principle of gender equity and regional balance.
Hence, The Truth Commission had three female Commissioners with gender expertise and four male Commissioners. Previously, Commissions were male dominated e.g. the Waki
Commission of Inquiry into the Post-Election Violence comprised three male Commissioners,
Akiwumi Commission of Inquiry into the Tribal Clashes comprised three members (2 male and 1 female) and Goldenberg Commission comprised three male members among others.
The membership of these Commissions was determined by the President who had no obligation to ensure gender parity and balance. In addition, these Commissions were not constituted by statutes that specifically governed their processes. Consequently, the law to some extent did enhance women‘s numerical presence within the TJRC.
The TJRC was not only the first Agenda Four Commission that had gender parity but was also the only one that was headed by a woman albeit temporarily. Previous Commissions appointed by the President e.g. the Akiwumi Commission, Kiliku Commission, Ndung‘u
Commission and Waki Commission all had male Chairpersons. Nonetheless, even deliberate considerations of gender as provided within the law do not guarantee women being appointed to head these institutions. The informal rules of the game will carry the day. The TJRC is a good illustration as the appointment to the female Acting Chairperson to the helm was by default rather than by design.
205 The final report states that ―the representation of women in its staff body was consistently above 40 per cent (Kenya. TJRC 2013 1/1:33). In the same vein, the Commission was led by a female CEO, formerly an executive director of the women‘s rights organisation FIDA-
Kenya, from February 2010 to September 2012. At directorate level, women consisted 50 per cent during the same period.
In South Africa,upon the creation of the TRC, women took up various roles as commissioners, victims, activists and witnesses (Gobodo-Madikizela 2005:7). Forty one per cent of the commissioners and 75 per cent of the regional managers of the TRC were women
(Godobo-Madikizela 2005: v).76 Furthermore, the committee seats were equally divided between women and men (Godobo-Madikizela 2005:8). According to Godobo-Madikizela, women commissioners and staff developed different and more compassionate forms of emotional support as compared to that of their male counterparts (World Bank Report
2006:12).
Cornwell argues that what comes to be viewed as participation and by whom, is a deeply political issue (Cornwall et al 2008:32). They further assert that different actors bring to any space for participation either of these different meanings of participation and have different expectations and engagements. As a result, different actors will have very different experiences and impressions of negotiating accountability (Cornwall et al 2008:32). The actors who are able to create and sustain spaces for participation will exercise considerable power in defining their possibilities (Cornwall 2002).
Recent scholarly work criticizes descriptive representation on the basis that it ignores the difference among women and overlooks the potential of men as actors on behalf of women as a social group (Childs and Krook 2006; Weldon 2002; Celis 2006a). As discussed hereinabove, there are real and perceived differences among womenand hence substantive
76 The TRC was also representative in terms of racial background. 43 per cent of the commissioners were black, 29 per cent white, 14 per cent of mixed race and 14 per cent of Indian descent. 206 representation that factors in heterogeneity of women and men as allies needs to be promoted.
Indeed the TJR Act took is a liberal feminist perspective whereby focus is placed on increasing the numbers of women within the TJRC as an organisation and its processes. The core assumption is that by increasing women‘s descriptive representation within the TJRC and its processes it will automatically translate to the substantive representation of women‘s priority concerns. This assumption however excludes questions as to where the substantive representation may occur and what the substantive representation of women actually entails.
Commissioner Slye spoke about the challenges in implementing a gender perspective in the
TJRC‘s work even where women were well represented within the Commission and its staff.
He said:
I think there were definitely people within the commission who were less sensitive to, or even supportive of, devoting specific resources to capture a gender perspective in our work. I am not sure what their main arguments would be -- I suspect it might be a resource argument (which of course would also mean a priority argument – in other words, that given limited resources, focusing more on a gender perspective is not realistic or as important as other issues). The Commission staff revealed that the presence of women and men who were sensitive to gender concerns was essential to ensure that gender perspective was captured in the course of the TJRC‘s work. The Director of Special Support Unit stated:
The law has helped in the sense that our Act says that we should pay particular attention to women so it has facilitated putting in place those special mechanisms such as the meetings for women. The law has facilitated it but what I have seen is that even where there is an operational mandate to look at issues it is also the people in charge of implementing that. I should mention that our Chief Executive Officer is passionate about it and the Commissioners are passionate about it. So there is that reinforcement to ensure that women do participate. So it is not just law. An analysis of the proposed reparations framework reveals that the presence of women in the
TJRC did not necessarily mean that women‘s issues-however defined-would be promoted.
The Reparations Framework, the most significant outcome of the TJRC process, had many deficiencies leaving women‘s experiences of repression undervalued, misunderstood and unaddressed. Women‘s interests would include the concerns that women themselves voice as
207 being important especially those arising from the private sphere, issues concerning their autonomy and well-being and areas where there is gender inequality.
Furthermore, both the descriptive and substantive representation essentialize women and their interests as a social group as it is assumes the homogeinity of women‘s lives. They allow elite women to decide what ―women‖ as a social group need hence applying a paternalistic approach to women‘s interests. Weldon states that, ―If (a representative) is a white, straight, middle class mother, she cannot speak for African American Women, or poor women, or lesbian women on the basis of her own experience. Women‘s group perspective emerges only when members of the group come together, (when) they can compare…and each person gains a greater understanding of the larger puzzle‖ (Weldon 2002:1156). These sentiments were made by women respondents who thought that elitist women in their offices did not understand the needs that grassroots women had. One respondent stated:
Women in the offices only defend their own rights; they don‘t care about the rights of the women at the grassroots. We don‘t have faith in women in offices…
6.4 Conclusion
In conclusion, it was found that the politics of representation had an impact on the extent of women‘s participation within the TJRC. Overally, the challenges around the Chairperson of the TJRC had a negative effect on the work of the Commission, which resulted in inadequate civic education, civil society, donor and media disengagement. In turn, this state of affairs caused low participation of women.
The informal case selection rules for the public individual hearings depicted hidden power within closed spaces whereby the TJRC chose ―window cases‖ without the input of the participants. These ―window cases‖, being aligned to the definition of gross human rights
208 violations, mostly did not involve women as direct victims. Consequently, fewer women‘s stories, herstories, were selected for the public individual hearings.
In addition, women did not necessarily view the women participants in the TJRC processes, whether as Commissioners, staff or witnesses, as representing their interests. The heterogeneity of women meant that women had to have representation from those who were more closely related to their identities.
209 CHAPTER SEVEN: CONCLUSIONS AND RECOMMENDATIONS
7.0 INTRODUCTION
This chapter makes conclusive reflections on women‘s participation in truth commissions and from these draws recommendations on how to effectively engage women in such transitional justice mechanisms.
A multi-dimensional approach is used in proposing both legal and non-legal strategies that in my opinion may contribute towards full and active participation of women in truth commissions. The chapter discusses possible legal and non-legal strategies, which if applied simultaneously will positively impact on women‘s participation in formal peace processes such as truth commissions.
7.1 The Intricacies of a Gender Perspective to Truth Telling.
Many truth commissions have had challenges implementing a gender perspective (or analysis) from the time of its inception to its conclusion. Newly established truth commissions have replicated previous commissions without taking into account the differences in contexts and their failures. Consequently, truth commissions seem to play out the same pitfalls in incorporating a gender analysis. The South African TRC and Peruvian CVR failed to apply a gender perspective of their work from the time of its inception. The Kenyan TJRC, influenced by its predecessors, conceptualised a gender perspective as merely adding women to its processes. Therefore, all these three commissions developed an incomplete gender analysis.
The World Bank report on gender justice and truth commissions reveals that most truth commissions understand ―gender‖ as being synonymous with ―women‖. Women‘s experiences are captured by a ―special unit‖ responsible for encouraging feminine presence in the truth commission. The truth commission includes a standalone chapter on 210 women/gender in its final report as if there is disconnect between women‘s experiences and the rest of the historical record of past human rights abuses. The Kenyan, South
African and Peruvian truth commissions all had gender chapters in their final reports that presented their findings and conclusions on violations of human rights as against women.
The SA TRC conceded that having the separate chapter on gender sidelined rather than mainstreamed women; women are viewed as ―special interest group‖ rather than ordinary members of the society (South Africa. TRC 1998 4/10:289). Consequently, the TRC asserted that to fully integrate gender it would have had to change ―its understanding of its mandate and how it defined gross human rights violations‖ (South Africa. TRC 1998,
4/10:289).
Consequently, in applying a gender perspective, past truth commissions, including the
Kenyan TJRC, have justified women‘s presence. The gender analysis has been misunderstood to mean adding women rather than a deep analysis of the impact of a repressive regime on both women and men and requisite reparations. The gender perspective (or analysis) is disfigured to meet meanings of gender that do not share out interests to both women and men
(Smart 1989:78). Like in the manipulation of sexuality, the misinterpretation of a gender perspective (or analysis) has led to alienation and oppression of women and false consciousness in truth commission processes.
This practice of truth commissions, which may be unintentional, is hinged on a deep misunderstanding of what constitutes a ―gender perspective‖, an exclusionary legal mandate and an entrenched patriarchal insistence that sexual difference is politically relevant. The best feminist response for truth commissions would be to eliminate all reference to the differences between women and men in political, social, economic and cultural life and engender all the experiences of violations under authoritarian regimes.
211 Engendering the work of truth commissions provides an accurate, realistic and nuanced picture of conflict and or authoritarianism. A gender perspective draws a deeper understanding of how conflict and or repression affect the lives of both women and men from the social, political, economic, cultural and security aspects. By establishing an accurate picture of conflict or repression, a gender perspective also provides an entry point for formulating reparations and or initiatives that are integrated and responsive to the needs of both women and men. An integrated reparations policy extends recompense from the ambit of the law and justice into that of socio-economic development that is greatly needed to transform lives of women.
From this premise, a gender perspective would include a gender sensitive definition of the legal mandate of a truth commission that confers the power to investigate human rights violations that were experienced by both women and men under repression. Further, the gender analysis would require a truth commission to assess the impact of repression in Kenya on women and men. Thus it would include the reaction of women and men to conflict or repression. It would also include the different needs, skills and ways of coping and surviving held by women and men during repression. A gender analysiswould uncover and interrogate the shifting of power relations during conflict or repression. At the post-conflict stage, the gender analysis would reveal the different perspectives, concerns and solutions of women and men based on their experiences. Finally, it would expose the emerging power relations, new actors and propose engendered reparations in the post-conflict society. To achieve these objectives of a gender perspective, a truth commission has to enhance the participation of women. In fact, a gender perspective would instinctively require a truth commission to actively involve women in its processes. Hence, the incorporation of a gender perspective underpins the full and active participation of women in truth commissions.
212 7.2 The Inadequacy of the Law in Guaranteeing Feminist Considerations in Truth Commissions
The present study reveals the limitations in applying an additive or liberal feminist legal approach towards women‘s participation in public processes such as truth commissions. This approach represents the bare minimum that the law can require of truth commissions in incorporating women. Indeed, an additive legal approach may to some extent increase women‘s numerical representation in truth commissions.However, numerical representation alone is inadequate and does not necessarily translate to strategic feminist representation. As previously discussed, the mere extension of existing rights of participation to women is ordinarily ineffective as the system of law is patriarchal and skewed in favour of men as exemplified by the legal mandate of the Kenyan TJRC and its South African and Peruvian predecessors. In addition, the law does not operate in a vacuum; it is effected within a gendered environment that favours men over women.
The clauses of the TJR Act obligated the Commission to put in place mechanisms that would ensure the participation of ―special interest groups‖ such as women, persons with disability and children. However, outside the women‘s only hearings, the participation of women was dismal due to the construction of the legal mandate of the TJRC and the gender ideologies of femininity and masculinity. The legal mandate of the Commission ended up blinding women‘s experiences. Further, the patriarchal legal system reinforces the private-public dichotomy, which restricts women‘s involvement in public, political processes such as the
TJRC. Due to the gender roles of women within the family, most women could only speak of human rights violations that occurred in the private sphere e.g. maintenance of children, domestic violence etc. On the other hand, most men spoke of violations that took place in the public sphere e.g. land injustices, torture, political assassinations etc.
The focus on the national, liberal state as the primary avenue for reform is part of a continuum that is initiated at the international level. The international human rights treaties that seek to
213 secure rights for women place importance on the liberal state for their realisation. Knop argues that this emphasis on international law results in bias in favour of state sovereignty which in turn harms and excludes women (Scully 2009:33). Romany adds that international human rights law makes overt the original sexual contract, which depends on the private/public and male/female dichotomies that ensure that the public sphere represents male interests (Romany 1994 cited in Scully 2009: 34). The concept of the sovereign state having to be left to its own devises in pursuing justice within international human rights treaties is a strategy for allowing men to continue perpetrating violations against women (Romany 1994:
85). Women‘s private sphere rights violations almost always tend to be tucked away and compartmentalised to less important section of the international human rights agenda. If women‘s rights violations, which predominantly occur in the private sphere, are not formulated in serious political terms and recognised internationally, they are unlikely to elicit the same kind of protection and support often mobilised for traditional ―male‖ public sphere rights violations. Romany argues that international law has an obligation of holding states accountable for violations against women, which occur in both the private and public spheres because in all instances the underlying cause is their female sex (Romany 1994: 85). By doing so, gross violations of human rights, as defined in international law, shall include violations that occur in both private and public sphere. The change in international law shall require states to make requisite amendments to their national law.
The law, more specifically the TJR Act, could only assist women to the extent that the interest of patriarchy was served. The power of law was depicted in its ability to dictate the definition of violations that should be heard and recommended for reparation by the TJRC. The law placed pre-eminence on some human rights violations, which took precedence over women‘s construction of violations. The power of law was subtle and determined the course of the
TJRC process. Therefore, ―adding‖ women to an already ―women unfriendly‖ legal system nullifies any efforts to enhance their participation in political processes. Transitional justice
214 institutions operate in the public sphere, a woman unfriendly space, whilst ignoring the private sphere as being politically irrelevant (Pateman 1988:11). For most women, the private sphere is the gateway for participation within the public sphere. Consequently, without permission from the male authority and without undertaking their traditional roles within the private sphere, women cannot effectively participate in truth commissions within the public space.So while men are easily able to move between the two spheres of the patriarchal society, women find it extremely difficult to transcend the private into the public.
7.2 Power Relations within Spaces of Participation
The concept of power influences participation, who participates, for whose interest they participate and for what outcome. Power relations are embedded in everyday practices, including participation in transitional justice institutions such as the ICC and TJRC. Power relations were exhibited between the truth commission and the community, the state and the truth commission, women and men and the state and international community. These power relations are sometimes evident and other times subtle. The unequal power relations between women and men are only evident under gender lenses. To overturn these power relations so that women can meaningfully participate in public peace processes such as the TJRC there is need for holistic intervention addressing not only legal constraints but also social, political and economic constraints.
Participation denotes that all sections of society should be connected to social and political processes that affect their lives (Olsen 2007:11).Participation is intricately linked to empowerment of women. Empowerment consists of strengthening the political and rights awareness of women, their critical consciousness, personal sense of worth, analytical capacities and ability to meaningfully engage in decision-making at all levels from family, non-governmental organisation to government‖ (VeneKlasen 2004:25). The findings in the present study revealed a lack of sense of ―power within‖ women that impacted on their ability 215 to negotiate and agitate for spaces of participation and engage effectively in the TJRC. I interviewed women who had a low sense of self-worth to the extent that they did not view themselves as citizens worthy of engagement in public affairs that were in the domain of men.
Therefore, women‘s greatest kind of participation occurred within spaces marked by the absence of men.
Ni Aolain and Rooney argue that ―transitional justice for women requires a very large and long field of vision, which extends beyond the realm of truth commissions, into the complexity of enforcement of laws and decisions, awareness of silences about masculinity, and the need to avoid stereotypes of women as natural peacekeepers‖ (Scully 2009:32 citing
Ni Aolain and Rooney 2007). I hence believe that transformation for women through truth commissions cannot occur solely through the use of legal strategies.As the data in the present study shows, the law alone is insufficient to ensure women‘s participation in formal peace processes such as truth commissions. Smart recommends the use of non-legal strategies to transform women‘s lives. These non-legal strategies are important for the effectiveness of the legal strategies. The non-legal strategies suggested hereunder address the issue of empowering the woman as an individual to meaningfully participate in the processes of a truth commission. These non-legal strategies also deal with normative systems such as the family, religion and culture, which create barriers for women‘s participation in public processes such as truth commissions. This conclusion is founded on state obligation under international human rights instruments such as CEDAW and the Women‘s Protocol to modify gender stereotypes and cultural patterns that impact on women‘s position in society.
Scully argues that women may be side-lined at the final stages of truth commission processes even where they were more involved in the earlier stages through design and lack of
216 implementation of proposed reparations.77This was the position of the Reparations
Framework which diluted the consultative women‘s only and public individual hearings that the TJRC conducted during its lifetime. It was noted that the Reparations Framework defined narrowed perspective of harms that would be eligible for reparations. It further established a hierarchy of gendered harms whereby men‘s experiences of violence were highly prioritised for reparations whilst women‘s experiences were under-prioritised. The Reparations
Framework emphasized on monetary reparations and rehabilitation for sexual violence for the fewer women victims who appeared before the TJRC. However, for the majority of women, who suffered structural violence arising from social, economic and cultural fabrics of society, collective reparations that may have no direct individual effect were proposed. I thereby concluded that despite opening up spaces for women‘s participation in the course of the TJRC process, the Reparations Frameworkwatered down these gains and did not envision systematic discrimination of women as a matter of major importance. Therefore, women‘s participation in the previous phases of the TJRC that were to culminate into the Reparations Framework can be overally be described as a whitewash and window dressing.
7.3 RECOMMENDATIONS
7.3.1 Legal Strategies
I recommend the re-conceptualisation of what constitutes ―gross human rights violations‖.
The TJR Act definition of gross human rights violations was inspired by the international human rights law definition provided under the Rome Statute, UN Principles on Reparations amongst others. Gross human rights violations have mainly captured women‘s experiences of rape and or gender based violence occurring within the public sphere i.e. sexualised violations. However, as the present study reveals, majority of women victims experienced non-sexualised violations occurring in the private sphere that are precluded from the ambit of
77Pamela Scully ―Should we give up on the State? Feminist Theory, African Gender History and Transitional Justice‖ African Journal on Conflict Resolution Special Issue on Gender and Transitional Justice in Africa Vol. 9 (2) (2009)p. 34 217 gross human rights violations. Therefore, national and international law define what is relevant to a truth commission according to male-oriented legal terms rather than women‘s terms; what is oppressive to women is not termed as legally relevant. I recommend re- theorising of what constitutes gross human rights violations under both international and national laws that establish truth commissions. I propose a broader definition of the term
―gross human rights violations‖ that encapsulates women‘s and men‘s experiences of violence. The distinction between primary and secondary victims has been shown to symbolically reproduce gendered hierarchy of harms whereby those endured by men are perceived as primary and those by women as secondary or marginal. I hence propose inclusion of non-sexualised violence that occurs within the private arena as a form of gross human rights violation. In doing so, a truth commission will be required to investigate and record women‘s experiences beyond sexualised violence.
Thelaw ought toreconceptualise the terms ―gross human rights violations‖ and ―victim‖ in a way that captures the human rights violations that are experienced by women and men whether directly or indirectly. For instance, where a woman‘s husband is unlawfully detained and tortured for political reasons, she too shall be categorised as a victim of gross human rights violations as her husband. Consequently, the truth commission shall deal with the account of the wife, as a secondary victim of unlawful detention and torture, and that of her husband, as the primary victim. The gender hierarchy of harms will be obliterated.
It is proposed that the constitutive, national, and international laws should redefine the term
―victim‖ in a way that captures the human rights violations that are experienced by women and men whether directly or indirectly. The international and national law definition of gross human rights violations creates of a gender hierarchy of harms whereby majority of women‘s experiences of violations are undervalued and made invisible in comparison to men‘s experiences. As exemplified by the Kenyan TJRC, when applying its legal mandate the experiences of men as primary victims were broadly recorded and yet those of women as
218 secondary vicitms of gross human rights violations were made invisible. By redefining and reconceptualising ―victimhood‖, a truth commission will record the violations under repression whether they were committed in the private-public sphere and or against a direct or indirect victim. This approachwill undoubtedly result in an accurate record that espouses the experiences of men and women. Furthermore, a truth commission will prioritise violations experienced by both women and men- also primary and secondary victims-in its reparations framework. For instance, where a woman‘s husband is unlawfully detained and tortured for political reasons, she too shall be categorised as a victim of gross human rights violations as her husband. Consequently, the truth commission shall deal with the account of the wife, as a secondary victim of unlawful detention and torture, and that of her husband, as the primary victim. The gender hierarchy of harms will be obliterated.
As discussed in chapter six, the TJR Act conceptualised women as a homogenous group when providing for representation of women within the TJRC and its processes. The present study found that women had multiple identities and differences, which impacted on the efficacy of representation. Women at the local level did not believe that their interests could adequately be represented by women within the national TJRC who were drawn from different ethnic groups, class and religion. A law that is responsive to women‘s relevancies should take into account the intersectionality of women‘s lives.
It is hence recommended that community-based truth, justice and reparations committees be established to alter political transition into one of bottom up approach that reflects the interests of the community; more especially women‘s interests as they more actively participate in grassroots rather than national initiatives. In addition, a community-based approach to truth-telling steers truth commissions away from the site of law and government in securing justice for women. Women are able to find multiple sites for justice and transformation outside the state.
219 It is proposed that conversations in these community-based truth committees be facilitated by grassroots women themselves. Since reconciliation is a long-term process, the community- based truth committees shall outlive the national truth commission. The community-based truth committees will also spearhead continued dialogue amongst women of conflicting communities so as to promote healing and forestall the threat of any potential future conflict.
The community-based truth committees shall be established at the lowest possible community level independent of the county and national government administration. The community- based truth committees shall harness the already established local based structures such as women‘s self-help groups, victims‘ groups among others.
In these community-based truth committees, women participants shall find commonalities in ethnicity, gender, class and religion. The community-based truth committees will have the potential of changing national narratives that focus on differences. Further, women participants shall be able to openly speak as even safer spaces of participation will be created.
In addition, the community-based truth committees will create legitimacy in the entire truth- telling process since a bottom up approach will be applied. During the course of a national truth telling process, the community-based truth committees will relay findings to the national truth commission that will act as a repository. The role of the national truth commission shall include organisation of national events and the compilation of the final report. The community-based truth committees shall address the challenge raised by Scully on incorporating a traditional justice model within transitional justice that works outside the framework of law and state that is unwilling to adequately spearhead women‘s transformation.
Similarly, the appointment of Commissioners, staff and methodology employed by truth commissions should reflect women as a heterogeneous group. For instance in the appointment of members to the national truth commission, the law should obligate the appointing authority to ensure gender, region, ethnicity, age and disability and religion of both male and female
220 appointees. In other words, the Commissioners and staff should reflect the diversity of
Kenyan women in so far as it relates to their class, religion, disability and ethnicity. This intersectionality approach shall not only address representation politics but also the overall gender discrimination in transitional justice mechanisms.
As the law is reconceptualised in a manner that responds to women, I recommend redefining the theory of justice within the legal system. A truth commission mainly focuses on achieving restorative justice. Restorative justice moves beyond the rather masculine discourse of crime and punishment embodied in retributive justice.Gilligan describes the masculine mode of justice as ―inexorable, unemotional, impersonal and objective‖ (Smart 1989:73). Restorative justice centres on a more feminine discourse of the notion of repairing relationships. The pursuit of restorative justice through truth commissions is arguably more accessible to women due to the flexibility of its processes and also its capacity to address the need for victims for public acknowledgement and other reparative measures. This understanding of the work of a truth commission appears to provide women with practical and conceptual inclusion. The findings of the present study confirmed this argument. Women‘s theories of justice were relational and based on the care and maintenance of relationships. Women related the concepts of truth, justice and reconciliation with repairing relationships with their perpetrators and their lives with reparations. Nonetheless, the Kenyan TJRC seemed to embrace the masculine mode of justice that departed from women‘s theories of justice. The TJRC failed to provide a platform for women victims to confront, have dialogue and repair relationships with perpetrators. Instead, the conversation that dominated the TJRC was based on an impersonal monologue from the perspective of victims. The feminine mode of justice was repressed and undervalued to the point that the Commission did not take all necessary steps to implement its legal responsibility to attain women‘s theories of justice. Like Gilligan and MacKinnon, I suggest an integration of a theory of justice that is just in its treatment of women; a feminised theory of justice personified in the processes of truth commissions.
221 7.3.2 Non-Legal Strategies
VeneKlasen asserts that participation is the starting point for realisation of rights, development, engagement in political processes and public policy and strengthening of political consciousness and agency (VeneKlasen et al 2004:12). The emphasis should now be placed on the need to enhance women‘s capabilities so that they can advocate for their rights.
For women to advocate for their rights they need to have a deep understanding of self as the subject of rights by developing a ―critical consciousness and ability to act that involves self- discovery, learning, collective awareness and analysis‖ (VeneKlasen et al 2004:8). Women ought to view themselves as entitled citizens with capacity to engage and re-shape power
(VeneKlasen et al 2004:10). For women to effectively participate, they need to be endowed with a personal sense of citizenship, self-worth, knowledge and capabilities.
In patriarchal societies, the female gender is oppressed and suppressed. Women hence need to be empowered to move out of constrained and isolated spaces into invited spaces and or spaces that they create and or claim for their participation. This kind of empowerment requires women to unlearn life principles acquired through socialisation.
It is recommended that the discourses within spaces of participation be transformed to create an enabling environment for the voices of the powerless, such as women, to be heard. The
Kenyan TJRC multiplied spaces and allowed particular kinds of people within the existing spaces, for example through the women‘s only hearings and the thematic hearings. However, more needs to be done than multiplying spaces for participation. There is need for tactical engagement or creation of other spaces to overcome rules of the game that disable women‘s participants to enter the public sphere armed with means to assert themselves. The tactics include popular education, widening spaces for involvement in decision-making, assertiveness training, building skills of argumentations, advocating for inclusion of women from all walks of life or providing women with information on the rights and policies that they are being
222 consulted about. Women ought to be equipped with the ―weapons of the powerful‖ which
Cornwall explains as the language with which they can argue with technical specialists or understand the complex mandate of truth commissions so that they can make valuable input
(Cornwall 2002).
I draw this school of thought from Smart‘s proposal of raising consciousness about what is truly female without the influence of male power (Smart 1989). MacKinnonadds that such consciousnessraising usually pervades all aspects of women‘s lives (MacKinnon 1991). The women‘s only hearings conducted by the Kenyan TJRC enhanced women‘s voices within safe spaces dominated by women and outside the sphere of influence of men. Women participants within these spaces illustrated a strong sense of self-consciousness that was brought forth within an enabling environment outside the influence of male power. Emerging from these safe, women‘s only space was women‘s ability to speak openly about their priorities, needs and concerns as women. By empowering women to be conscious of self, they can participate more effectively in public processes as ordinary citizens and free from male power.
The law must operate in tandem with campaigns aimed at delinking the impact of semi- autonomous fields from the degree of women‘s participation in formal peace processes such as the TJRC. These campaigns include civic and formal education, economic empowerment, affirmative action in public peace processes and removal of cultural and religious barriers through change of social attitudes on the role of women in peace processes. Kenyan laws and policies fall short of international human rights standards by failing to address socio- economic constraints affecting women‘s full participation in peace processes such as the
TJRC. Dealing with these socio-economic factors complements the legal provisions on women‘s participation in the TJRC process. There is a need for law or policy on public participation that obliges the State to establish extensive programmes that seek to change negative social and cultural attitudes affecting women‘s participation in formalised peace processes e.g. development of peace education curriculum for schools that incorporates the
223 aspect of women‘s participation, public education targeting men, women, community and religious leaders, gender training for relevant government departments, legal practitioners, judicial officers and transitional justice actors etc.
Thirdly, women‘s gender roles hindered their full and active participation in the Kenyan
TJRC. Public education that seeks to change gender stereotypes may take considerable period of time to show positive results. For women to effectively exercise their political right of participation they need to balance their roles within the private and the public spheres.
Consequently, transitional justice mechanisms should be sensitive to women‘s traditional gender roles. Truth commissions ought to be alive to such barriers which impact on women‘s participation because the public realm (where women are underrepresented and subordinated) is an extension of the private realm (where women are represented yet subordinated). Hence a truth commission should be keen on the goings on of the private sphere to ensure the full and active participation of women in the public sphere. A truth commission should be sensitive to detail concerning issues such as the timings, the venue and structure of its processes etc. It is recommended that the processes of truth commission should be simplified and demystified rather than shrouded with formalities that impede women‘s participation. Theseseemingly minor issues have a considerable impact on women‘s full and meaningful participation.
The diagram hereunder reflects how the legal and non-legal strategies will work together to enhance women‘s participation in truth commissions. The community-based truth, justice and reparations committees led by grassroots women will hold conversations for both men and women which will then feed into the national truth, justice and reparations commission. The committees will sustain these dialogues way beyond the life of the national truth, justice and reparations commission that will be time-bound. Whilst these dialogues are ongoing, the woman must be well equipped both within and without to contribute meaningfully to the process. This shall involve consciousness raising, reserved seats or quotas for women within state institutions, economic empowerment, public education to break down gender
224 stereotypes, social, cultural and religious barriers for women‘s participation among others.
The theory is that all these factors shall enable the woman transcend from the private space into the public space when she needs to participate in peace processes.
225 Diagram 11: Strategies to Enhance Womens' Participation in Truth Commissions
PRIVATE SPHERE
Consciousness Finding raising of the Commonality in truly female difference outside male power
Representation Reconceptualise in state d law on gender structures discrimination
Breaking down of social, cultural and religious barriers Economic Woman empowerment
Man
Meaningful, full and active participation
Community-based Truth, Justice and Reparations Committees
Meaningful, full and active participation
National Truth, Justice and Reparations Commission
PUBLIC SPHERE
Gendered Reparations Programmes resulting in positive transformation for women
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248 APPENDIX
Women at the women’s only hearings in Kilifi County
A woman shares her experiences at the women’s only hearing in Mombasa with a counseller beside her
249
Women are given refreshments upon the conclusion of the women’s only hearing in Mombasa County
A visually impaired man testifies during the public individual hearing in Mombasa with a counsellor by his side
250
Youth demonstrate for not being given an opportunity to testify during the Kilifi County public individual hearing
Youth demonstrate during the public individual hearing in Kilifi County
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A man breaks down with emotion as he testified about land injustices in Kilifi County public individual hearing
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