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“The struggle of memory against forgetting”: The Kenyan Supreme Court’s judgment on transitional justice

The facts of the case went back to 1992. They related to State violence against a set of protesters, collectively referred to as “mothers of political prisoners” (the reference is self-explanatory), and who were the Appellants before the Supreme Court. Appellants submitted that for a period of many months in 1992, they were subjected to repeated physical assault by the State police, as they peacefully protested for the release of political prisoners. Because of the prevailing political situation (Kenya was still effectively transitioning to a multi-party democracy at the time), the Appellants elected not to go to court. They finally did so in 2013, three years after the coming into force of Kenya’s new, 2010 Constitution.

Both the High Court and the Court of Appeal dismissed the petitions on the basis of delay. While both courts agreed that in principle State violations of fundamental rights did not have a limitation period, they also held that in this case the delay was inordinate and unexplained: the President in power at the time of the events had left office by 2003, and avenues to redress human rights violations existed after that.

The Supreme Court disagreed. It located the question of delay within the framework of transitional justice (paragraph 40), the purpose of which was to allow a society to “confront the wrongdoings from its past.” (paragraph 42) As the Court noted:

The need to confront and silence the ghosts of past wrongs or historical injustices is relevant in the Kenyan context. This is in light of Kenya’s history which is littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post-independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period. (paragraph 43)

Thus, as the Court noted, the appellants’ claims fell within the category of transitional justice claims, as they related to a period recognised as oppressive (paragraph 44). Consequently, it held that “courts ought to be particularly sensitive” to the reasons for delay, while nonetheless balancing those reasons against the possible prejudice to a fair trial (paragraph 46), given the efflux of time. Marshalling material from the Latin American context, the Court observed that transitional moments, in particular, were long-drawn, and did not have a clear end-date: it was in the nature of transitions that they featured occurring and recurring attempts at justice, and the retrieval of historical memory in an effort to achieve that justice. More specifically – and in a remarkable moment of self-critique – the Court noted that right up until 2010’s constitutional overhaul, courts were “generally notorious for their abject failure to provide protection to victims of human rights violations.” It was also the case that the 2010 Constitution itself provided for redress for injustices committed during the repressive era (for example, in the context of land claims) (paragraphs 53 – 55).

The Court thus found that the delay, in this case, was not inordinate, and had a reasonable explanation. To this, it added an important public interest element. In paragraph 56, it noted:

To us, a judicial trial serves to send strong expression of formal disapproval of gross abuse of human rights. It also functions to re-commit state institutions and persuade the general citizenry of the importance of human rights in a polity. On the other hand, failure to ensure access to justice could send the wrong signal that judicial imprimatur has been given to these historical wrongs. Such a stance will encourage not deter potential violators of rights. It would also send the signal to the public that they can be complicit in violation of rights without consequences attaching to the perpetration of such atrocities.

In other words, therefore, remedying atrocities from the past within a transitional justice framework is not only a backward-looking activity that seeks to redress a wrong, but also a forward-looking activity, which performs an important expressive function: it involves a recommitment by State institutions to the human rights framework, which is an important bulwark against a polity lapsing back into authoritarianism. This, thus, is a response to a common argument against dredging up events from the distant past: that no matter how distant, the past always impinges upon the present, and a constant, critical re-examination of the past is necessary for the present. It is the judicial articulation of Milan Kundera’s famous line: “the struggle of man against power is the struggle of memory against forgetting.”

Having held so, the Court still had some work to do regarding the actual events. It found, first, that as the 2010 Constitution did not apply retrospectively, given that the events were from 1992, Kenya’s repealed (Independence) Constitution of 1963 would apply. This is (perhaps unintentionally) instructive: the events of 1992 were squarely covered by the repealed Constitution and its bill of rights (except, of course, there had been no will to implement it at the time), and – when interpreted and applied by an independent judiciary – became the foundation upon which the Appellants were granted their remedy.

That apart, the Court also had to consider the threshold and standards of evidence, where the initial burden of proof – it held – lay upon the Appellants to establish a violation of their rights. For one set of claims – namely, that State authorities had harassed one of the protesters by repeatedly demolishing her home – the Court found that no evidence existed for this, and that therefore, it was unable to grant relief. However, matters were different with respect to police violence, as those events had been extensively covered by the media and by academic historians. The Court was therefore able to cast this as a “matter of general notoriety”, and take judicial notice of the same (paragraph 71). Of course, the Appellants had to establish their presence at the scene, the fact of the arrest, and medical evidence of beatings. While they did not have documentary evidence for these, the Court relied on their affidavits, which had not been controverted or denied by the State. This, given the overall factual matrix, the Court held that on a balance of probabilities, the Appellants’ case for their presence was made out (paragraph 79). It then followed:

However, taking into account the violent nature of the disruption of the subject protest/assembly, it is more likely than not that the whole episode had a psychological traumatic effect on the appellants, who we have held were at the locus in quo. Although the appellants did not exhibit any physical injuries or medical reports, we are persuaded that the whole incident had a psychological/traumatic effect on them. This in our view can be equated to inhuman treatment which was a violation Section 74(1) of the repealed Constitution. This is because the respondent did not give any justifiable reason(s) whatsoever why it was necessary to violently disrupt and disband the protests by the appellants who were harmless. To that extent and unlike the two superior courts below, we find that the appellants’ right to freedom of association and assembly was interfered with and due to the violent methods employed by the police, this amounted to a violation of their human rights which were duly protected under Section 74(1) of the repealed Constitution. (paragraph 90)

The Court thus had to tread a fine line: in the absence of evidence, it could not quite hold that the specific case of torture had been made out. But what it could do was to take the facts that were given – i.e., the violent disruption of the protests by State agencies – and place it in its appropriate context. This allowed the Court to reach the (slightly more benign) finding of inhuman treatment, traced back to the State action and its impact on the group as a whole, as opposed to the specific finding of torture. Accordingly, it went on to award compensation to the Appellants, that would “serve to enhance the dignity of the appellants but also be a public recognition of the wrong done to them given the historical context of this case.” (paragraph 93)

To my mind, therefore, the Supreme Court’s judgment stands out in two respects, and deserves a close reading from students of transitional justice. First, the Court framed it not merely as a question of redress (which it undoubtedly is), but also as a question of periodic recommitment (or renewal) that State institutions the polity must undertake towards the rule of law and the fundamental rights regime. This brings the past into a continuing dialogue with the present (and the future), and ensure that – through the vehicle of constitutional law – the present and the future will continue to be informed by the past. And secondly, when it came to questions of evidence and burdens and standards of proof, even though three decades had passed, and individual claims were no longer supported by categorical evidence, the Court skilfully used judicial empathy and imagination to bridge the gap between the established facts (violent police break-up of protests) and the constitutional guarantee (against inhuman treatment). This serves as an object lesson in how to deal with history in a sensitive and even-handed manner.

As a final point, it is perhaps important to note that the Court’s task was made easier by historical and social consensus around the past: at one point, the Court noted that it was recognised that the period in question was a repressive period, where the State’s own (subsequently commissioned) reports showed that all state organs (including courts) were deeply hostile to accountability. The Court was able to draw upon relatively established sources – academic histories, State reports, court judgments – all of which converged upon this understanding. This perhaps shows that while the role of courts in transitional justice contexts is crucial, that role needs to be built upon previously-laid foundations by political and social movements for the rule of law and against impunity. It is only once these movements establish a consensus around what the past meant, that the Courts can come in and provide justice. This is perhaps something to think about in other contexts, where authoritarian pasts are themselves contested, down to the bare facts of what happened (let alone why, or what the justifications were).

With that said, Wamwere vs The Attorney-General is an important addition to the global conversation on the intersection between law, the courts, and transitional justice.

This article was first published in the Indian Constitutional Law and Philosophy blog: https://indconlawphil.wordpress.com/2023/01/30/the-struggle-of-memory-against-forgetting-the-kenyan-supreme-courts-judgment-on-transitional-justice/

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