Transitional Justice and Religion: An Examination of Faith-Based Actors in Kenyan Civil Society

These examples of transitional justice mechanisms in Kenya are particularly useful for comparative analysis of religious actors’ responses since one—the International Criminal Court (ICC) indictment—represents a secular approach of holding people accountable while the others—a Truth, Justice, and Reconciliation Commission and the blanket amnesty offer—represent a religiously-affiliated approach of forgiveness and reconciliation. Moreover, charting reactions to the different mechanisms constrains the analysis to the same Kenyan civil society, and largely constant faith-based actors. This allows the paper to draw reasonable comparisons and examine how the contexts of conflict affect the reception of different transitional justice mechanisms.

Current theoretical discussions, elaborated in the first section, tend to argue that faith-based approaches to transitional justice are generally more focused on forgiveness and reconciliation than secular approaches. The major argument of this paper is that the Kenyan case demonstrates that the transitional justice approaches of religious actors are more complicated than the current literature and theory suggest.

The research presented in this paper will demonstrate that the forgiveness and reconciliation approaches do not map neatly onto Kenyan religious actors. This finding and its implications complicate the discussion of religion and transitional justice and raise important new questions for inquiry. Besides questioning the current state of scholarship, this paper adds the case of the Shabaab amnesty to the scholarly discussion—because of its recency there is not yet published scholarly writing on this case. Although there is significant religious diversity in Kenya, it is a Christian-majority state with approximately 82.5% of Kenyans identifying as Christian.1 Therefore, the paper focuses primarily on Christian actors.

Gallery: Images depicting the chaos of post-election violence, taken in the wake of the 2007-2008 national elections. Photos © Martin Ndugu.

Transitional Justice in Theory

This section will establish the specific meaning of key terms and examine how some ideas of transitional justice are rooted in Christian thought. It will also offer a comparison to the secular-liberal approach, which focuses on punishment. In short, this section aims to tease out the current state of the literature on the intersection of transitional justice and religion.

First it is necessary to establish the meaning of the term transitional justice. In broader literature transitional justice can refer to “the sum total of activities that states and citizens undertake to redress past political injustices in order to restore political orders in the present and in the future.”2 This includes trials, “truth commissions, reparations, apologies, public memorials, forgiveness, as well as measures that civil society actors take to restore citizens and political orders in the wake of massive evil.”3 Another key term to identify for the sake of clarity is civil society, which in this paper refers to “actors who are officially separate from the formal state apparatus.”4

In his assessment of the state of the literature, Daniel Philpott argues that the faith-based approach tends to orient itself towards reconciliation. Referring to global trends, he writes, “All over the world, pastors, prelates, and imams have advocated for truth commissions, trials, and reparations schemes and sometimes have even helped to conduct to commissions…The language of faith comes through strongly in performances of apologies and forgiveness.”5 Philpott sees a trend of unity among faith-based actors in their propensity to support reconciliation in transitional justice approaches.6

Though this paper seeks to respond to and complicate it, there is evidence for his conclusion, much of it publicized in broader society. For example, Pope John Paul II called for forgiveness and reconciliation after September 11, 2001. In doing so, he updated Pope Paul VI’s maxim “no peace without justice” to include the addendum “no justice without forgiveness.”7 There are also Biblical precedents of forgiveness and reconciliation, including, perhaps most significantly, the forgiveness and reconciliation embodied by the crucified Jesus Christ. Indeed, Biblical justice is often understood as restoration of previously flawed relationships, an idea recapitulated in Christ’s sacrifice to restore humanity’s relationship with God.8 Philpott elaborates on the scriptural roots of reconciliation: “The ‘vertical’ relationship between God and humanity is the source and model for the ‘horizontal’ reconciliation within political communities.”9 Just as God reconciled with imperfect humans, many religious transitional thinkers appeal to the “self-donating love of God, a love that expresses solidarity with victims and wills their liberation, but also, more surprisingly, liberates perpetrators from the ‘injustice committed through oppression.’”10

In contrast to the religious approach is the secular-liberal model. This model widely supports criminal accountability for perpetrators.11 This legalistic approach has mobilized widespread international support.12 Philpott succinctly explains the liberal position; he writes, “When it comes to past crimes, liberal thinkers have tended to oscillate between, or to combine complexly, two broad theories of punishment: retribution, which centers upon desert, and consequentialism, which stresses rehabilitation, deterrence, and the improvement of the social order.”13 Many liberal actors, argues Philpott, are thus reluctant to reduce punishment and are skeptical of the ability to forgive and the value of forgiveness.14

While Philpott recognizes plural opinions in the liberal approach—for example, he cites scholars such as Martha Minow who acknowledges the “restorative power of truth telling”15 as independently valuable—he finds religious actors to be more consistently aligned with pro-reconciliation stances. He concludes, “Forgiveness hovers close to the center of gravity of recent religious perspectives on transitional justice.”16 It is to this argument that the Kenyan case offers a counterpoint, for in the two Kenyan cases examined herein, religious actors are less reconciliatory than Philpott’s analysis would lead one to expect.

Before moving forward, it is important to note that there is still significant overlap between religious approaches and secular-liberal approaches to transitional justice, and Philpott acknowledges this overlap. It is not only religious people who talk about reconciliation, and it is not only secular people who are concerned with retribution. This essay seeks to demonstrate that overlap and look for contextual reasons why religious actors act differently than Philpott would expect. And finally, regarding the mechanics of the paper: it does not seek to make a normative judgment about either approach (religious or secular) nor does it intend to extol one over the other. Rather, the purpose of the paper is to examine points of difference and sameness between the two, and most importantly, test the claims made by Philpott about religious actors’ propensity for reconciliation using the Kenyan case.

Post-Election Violence

Background

From the inception of the multi-party democratic system in Kenya in the early 1990s to the highly contested 2007 elections, violent protests after presidential elections have been fairly commonplace in Kenya.17 Daniel Arap Moi, who had ruled Kenya since 1978, won the first two elections in the new system in 1992 and 1997 despite contention from opposition parties.18

Since the nascent constitution of Kenya provided few institutional checks on government, and especially presidential power, political elites merely went on competing for influence with no significant impetus for constituent-based reform or resolution of ethnic disputes.

Since the nascent constitution of Kenya provided few institutional checks on government, and especially presidential power, political elites merely went on competing for influence with no significant impetus for constituent-based reform or resolution of ethnic disputes.19

Chief among these disputes is that minority ethnicities have long felt that they were treated unfairly in post-colonial land distribution policies, which were supervised by Jomo Kenyatta, a member of the Kikuyu ethnic group.20 Rather than return the land to its original occupants, non-Kikuyus allege that Kenyatta sold it preferentially to members of his own group, who retained ownership of much of it through the turn of the century.21 Violent conflicts over land have been frequent and central to ethnic tensions.

The outcome of the 1992 and 1997 elections prompted further violent clashes, but the combination of civil unrest and a multi-party political landscape was still unable to produce the kind of responsive, constitutional democracy that many hoped for.22 While Moi remained in power, ethnic tensions and land conflicts persisted as they had for decades.

In the early 2000s, Kenya’s political landscape began to shift. The opposition parties formed the National Rainbow Coalition (NARC), supported by the Kikuyu ethnic group, and successfully wrested power from Moi, electing Mwai Kibaki as president in 2002.23 Kibaki ran on a platform of reform and revision of the constitution, and when he was elected, post-election conflict was minimal.24

However, two years later NARC split over power struggles and the particulars of revising the constitution, and when a new draft of the constitution was put to a referendum in 2005, it was defeated.25 Ethnic minorities believed that the proposed constitution, called the Wako draft, materially ignored the issue of land disputes and thereby unfairly catered to the Kikuyu elites.26 This stagnation, combined with ethnic tensions and the unfulfilled promises of reform by the Kibaki administration, set the backdrop for the contentious 2007 elections.

During the parliamentary elections preceding the 2007 presidential contest, “the opposition Orange Democratic Movement (ODM) had won a comfortable parliamentary majority… securing ninety-nine seats against the governing party’s forty-three seats.”27 As a result, many expected the incumbent President Kibaki to suffer an electoral defeat at the hands of his ODM challenger, Raila Odinga. Indeed, until just before the official results were announced, it appeared that Odinga was substantially ahead in the polls.28

When Kibaki was announced the winner, Odinga and his party rejected the result, claiming that the results were fraudulent, which they may well have been. According to a report from the International Crisis Group, “[a]ll national and international observers, including the Kenya Democratic Elections Forum (KEDOF), the European Union (EU), the Commonwealth secretariat, the East African community and the International Republican Institute (IRI), reported that…the tallying and compiling of the results was manipulated, dramatically undermining the credibility of the results.”29 ODM protesters took to the streets almost immediately, quickly turning violent and targeting Kibaki supporters and Kikuyu tribe members in general.30

Though the violence began as unplanned protests over what was seen as a rigged election, it spread quickly and took on a more organized nature in some areas.31 ODM supporters began forcibly evicting Kibaki supporters, prompting Kikuyu retaliation against ODM factions in response.32 As the violence spread across Kenya, the ethnic nature of the conflict became more apparent, with Kikuyu groups facing off against other ethnicities including Luo, Luhya, and Kalenjin.33

The following two months saw hundreds of thousands of people displaced from their homes, more than a thousand deaths, and frequent uses of police force and state violence.34 Finally, in late February of 2008, a peace accord was reached, mediated by the African Union Panel of Eminent Personalities and former UN secretary-general Kofi Annan, which for the most part ended the violence.35

Several investigations and commissions were established to look into the election, post-election violence, and mechanisms for healing and future prevention.36 In particular, the Waki Commission conducted an investigation into the post-election violence, collecting information on the individuals responsible for various crimes and recommending the establishment of a special tribunal to hold perpetrators accountable.37 However, when the Kenyan parliament failed to establish the tribunal, the Chief Prosecutor of the International Criminal Court (ICC) “took the unprecedented step of investigating the violence in Kenya without a referral from a member state or the Security Council.”38

Six suspects, including Deputy Prime Minister Uhuru Kenyatta—the son of Jomo Kenyatta—and William Ruto, who was an ideological leader of the ODM party, were charged with murder, forcible transfer and various other crimes.39 The Kenyan government, and to some extent its citizenry, have been persistent in their efforts to delay or halt ICC proceedings by any means possible.40 The ICC has dropped its cases against several of those it had indicted, including President Kenyatta in December 2014.41 In addition to the ICC proceedings there was also a Truth, Justice, and Reconciliation Commission set up by a Parliamentary mandate in 2009. After many delays and much criticism, the official report of the Commission was released in May 2013, shortly after the presidential election in March of that year.42 It is to the responses of faith-based civil society actors to these transitional justice mechanisms that the paper now turns.

Faith-Based Responses to Post-Election Violence Transitional Justice

The relationship between church and state in Kenya has traditionally lacked delineation, with churches and religious organizations frequently working to influence political events.43 One prominent religious coalition, the National Council of Churches in Kenya, played an instrumental role in bringing about a system of multiparty democracy under Moi’s rule, with particular help from the Roman Catholic, Anglican, and Episcopal churches.44 For several decades, churches and individual Christian leaders were influential in opposition to autocratic governance.

By the turn of the century, however, when opposition reformer groups began to grow in electoral power, the role of churches began to shift.45 Paradoxically, due to the tremendous success of civil society actors in unseating Moi and assuming power, civil society—including religious actors—lost much of its ability to be society’s watchdog and to check abuses of government power.46 This dilution of moral and ethical authority and capacity for regulation occurred in large part when the most successful, charismatic and strategically-minded leaders, both religious and secular, were drawn into careers in government, lobbying and the private sector.47

This had two deleterious impacts on these organizations. First, it left civil society organizations in the hands of younger, more inexperienced and generally less effectual leaders, who lacked both the practical experience and the network of connections their predecessors had utilized to shepherd political trends.48 Second, and perhaps more destructive, churches and religious figures began taking much more active roles in electoral politics, either endorsing particular candidates or in many cases running for elected office themselves.49

Explains Kanyinga, “the political divisions that accompanied the electioneering process spilled over to the religious organizations through this route of association with the party. It weakened the church’s moral authority and legitimacy to command, from the pulpit, an end to the violence. This eroded the church’s social authority to provide leadership.”50 Not only did this have the effect of dividing and dispersing religious authorities, but it also directly hindered any subsequent attempts at peacebuilding by many church organizations, since they were increasingly viewed as political actors, and correspondingly seen as less trustworthy or altruistic.51

This political, organizational and religious landscape was the backdrop for the disastrous 2007 elections. When fighting broke out between supporters of Kibaki and opposition forces along ethnic lines, churches found themselves in the unenviable position of being at once refuges and battlegrounds.52 Thousands of displaced Kenyans sought shelter and protection in places of worship during the post-election turmoil, while arguably the most barbaric act of the conflict took place in the Assemblies of God Church just outside Eldoret, where dozens of innocents were burned to death.53 While Christian churches were looked to for guidance and peacekeeping, the perceived political biases or ethnic affiliations of each church or leader hampered their ability “to establish themselves as viable alternative agents and facilitators of peace in a time of crisis.”54

This problem was further complicated by a co-option of traditionally Christian ethics language into political vernacular. As Philpott argues, Christian actors in transitional justice scenarios work to reconcile notions of justice and peace, both scripturally and pragmatically.55 In the case of Kenya’s post-election violence, however, churches found themselves unable to rely on any of the usual exhortations for peace or justice, because those terms had become polarized and weaponized in the ongoing fight for Kenya’s future.56

Calls for “peace” were seen as an endorsement of the status quo and Kibaki’s administration, while calls for “justice” were cast as sympathetic to the claims of the Kalenjin and Luo fighters that they had been historically marginalized and robbed of their land claims.57 This curious development meant that not only would churches lose the ear of one side or the other by calling for justice or peace, but also that they could invite physical danger through anything but the most carefully worded rhetoric. It therefore became very difficult for most religious actors to function as primary stabilizing factors in Kenya even after the conflict had come to a close, which is where this paper now focuses its attention.

Despite the pervasive Christian focus on truth, justice, and reconciliation as articulated by Philpott, many churches and religious leaders in Kenya were less than supportive of the proposed Truth, Justice and Reconciliation Commission in 2008. These churches positioned themselves as supporting “peace as an end in itself,” in opposition to the more liberal search for “peace with justice and truth.”58 Kanyinga offers one explanation for this phenomenon:

First, several progressive Islamic groups that the church perceived as fundamentalist supported the opposition ODM, and were in favour of peace with justice and truth…To the church and PNU, these groups were fundamentalists who would influence an ‘ODM government’ to make policies in favour of Muslims, especially in respect of the Kadhi Courts, a subject that was contentious in the 2005 referendum campaigns on the new constitution. The mainstream Christian churches were not keen to take a position similar to that of the Muslims … Secondly, and related to the fundamentalist perception, was the thinking that ODM stood for radical restructuring of the state and political power.59

Furthermore, many Catholic and Protestant church leaders shared both ethnicity and an interest in maintaining power with Kibaki’s ruling PNU party.60 As a result, their antagonistic stance toward the Truth, Justice and Reconciliation Commission may have been predicated more on political expediency and self-preservation than anything else.

Like the responses to the Truth, Justice and Reconciliation Commission, church responses to the ICC’s indictment and prosecution of Kenyatta, Ruto and others were widely varied. The National Council of Churches of Kenya was vocal in its support of the initial indictment, insisting that the hazy prospect of a local tribunal in Kenya would never materialize to provide justice and accountability for the perpetrators of violence.61 The NCCK went so far as to send envoys to visit The Hague, bringing with them a petition signed by one million people urging a trial.62 Other churches, particularly evangelical groups, initially supported an ICC trial but have since reneged on their positions.63

This divide presented itself most clearly following the successful 2013 vote in Kenyan parliament to withdraw Kenya from the Rome Statute and derecognize the prosecutorial authority of the ICC. The NCCK and the Roman Catholic Church made statements opposing the withdrawal, cautioning that the move would enable further human rights violations in Kenya, while the head of Kenya’s Baptist churches and the Supreme Council of Kenyan Muslims supported the withdrawal and hoped for an immediate end to the trial proceedings.64

What is particularly interesting here is that none of these churches and religious organizations appear to have opposed the ICC trial because of an ethic of forgiveness over retribution—rather, those who opposed the trial argued that a more effective and fair method of achieving punishment would come through local tribunals.

In contrast, the secular liberal approach to the ICC trials has generally followed Philpott’s hypothesis that secular liberal groups will be quicker to embrace retribution in transitional justice. For example, the coalition group of civil society institutions called Kenyans for Peace with Truth and Justice has taken a strong pro-ICC prosecution stance ever since the immediate aftermath of the conflict.65

They argue that Kenyan government officials voted to abandon the Rome Statute merely to avoid any real accountability, that there has been no substantial progress in Kenyan prosecution of crimes occurring during the post-election violence, and that large amounts of government attention and resources have been wasted on evading the demands of the ICC prosecutor rather than pursuing any meaningful national healing.66 The KPTJ repeatedly attempted to dissuade the ICC from granting Ruto and Kenyatta’s requests to be absent at their own trials, characterizing such requests as blatant attempts to avoid justice.67

One faith-based actor working on the local level to enact its vision of transitional justice via reconciliation is the Religious Society of Friends, commonly referred to as the Quakers. Over half of the world’s Quakers live in Kenya and the group is very active in civil society.68 In 2000, before the post-election violence, the Kenyan Friends developed a manual for churches to use to teach the value of peace. And in response to the post-election violence the organization developed a “Peace and Conflict Resolution” curriculum for secondary schools, which Friends’ secondary schools now teach.69

In preparation for the 2013 election, Quakers instituted programs at the local level called “Turning the Tide,” “Alternatives to Violence,” and “Healing and Rebuilding Our Communities Through Transformative Mediation.”70 These programs work at the grassroots level to challenge the underlying causes of violence, and seek to restore broken relationships in order to foster peace. The group also works to respond to key instances that threaten peace. For example, when ethnically charged pamphlets began circulating in Langas, near Eldoret, where significant brutality occurred in the post-election violence, the Friends organized a peace procession and peace workshops.71

The Friends also spearheaded a national “Know Your Rights” campaign, which trained over 20,000 people to become citizen reporters and identify early warning signs of violence. 660 of those trained served as election observers in 2013.72 To reduce the focus on ethnicity in the 2013 election, Quakers convinced candidates in Nairobi and Lugari to participate in public debates—a rare political spectacle in Kenya—so that candidates could be held to specific policy positions rather than mere ethnic affiliations.73

In addition to the already mentioned reconciliatory approaches, the Friends organized and deployed Friends Church Peace teams which traveled to internally displaced camps and homes of victims of violence to offer counseling and spread the message of forgiveness.74 The forgiveness workshops seem to have helped many Kenyans work towards that end. A testimonial of one survivor of post-election violence who attended a Friends’ forgiveness workshop illustrates this point:

“I never thought I would share my pain, but I feel stronger to forgive those who killed my husband. Some died, some were arrested, and some are alive. I met them but I have never talked to them. It may not be easy for me to meet them all, but since I have shared, I forgive them.”75

This statement, one among many, indicates the cathartic effect of telling one’s story and its contribution in the ability to forgive perpetrators.

In other denominations there is also testimonial evidence for the power of faith to foster forgiveness in victims of violence. One Protestant victim of violence, when asked if she could forgive the people who attacked her, replied: “Definitely. I have to forgive the perpetrators of violence because I am a staunch Christian and I believe in the power of forgiveness.”76

These statements, and many others like them, demonstrate how interpretations of Christianity can frame the way individuals affected by violence may process and understand acts of violence against them and their families.

For the Quakers in particular, the response to the post-election violence is clearly forgiveness-oriented, though it includes significant focus on improving accountability mechanisms to avoid future conflicts. In these cases, Philpott’s analysis rings true. Yet as is evident through other cases discussed in this section, not all Christians find forgiveness so easily.Continued on Next Page »