Strong justice systems crucial in the fight against terrorism
The transformation of Kenya’s political governance system under Vision 2030 will take place across six strategic areas: rule of law; electoral and political processes; democracy and public service delivery; transparency and accountability; and security, peace building and conflict management. The need for justice and governance cuts across all of these areas.
Vision 2030 has also been central to tracking positively the Millennium Development Goals (MDGs). The MDGs are ending this year, to be replaced with the new Sustainable Development Goals for Post 2015. While there is much continuity in these agendas there are several new areas which all UN member states will be expected to report against. Justice is one area which has been added to the global agenda with states being called on to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels” (Goal 16).
There is a fair degree of consensus around the challenges related to justice in driving contemporary violence and conflict. The Organization for Economic Co-operation and Development (OECD) highlights impunity, ineffective criminal justice systems, as well as inequality, poor governance and corruption – with the United Nations Development Programme (UNDP) providing a very similar list. These must be addressed if Kenya is to have a strong justice system able to resolve conflict and combat extremist violence.
Significant evidence has demonstrated the central importance of state-society relations in fostering less violent, more sustainably peaceful societies; where states and social institutions fail to provide basic justice, security and economic opportunities for citizens, conflict and violence can escalate.
To increase security and combat violent extremism in Kenya in the long term, the government and citizens must work together to create a strong justice system and ensure that people are legally empowered. This approach will allow the Kenyan government to deal with insecurity in partnership with its citizens and ensure citizens can access practical remedies when they face injustice. Strengthening justice systems should include:-
Access to Justice for All
According to a 2011 World Bank Report on conflict, security and development, countries with reputable justice systems are better equipped to prevent and mitigate conflict, crime, and violence. A 2012 Saferworld report on key challenges to security highlights an analysis of 280 country surveys in Africa and Latin America showing that countries that are not fragile or overtly affected by conflict have significantly higher levels of trust in the police, the justice system, and parliament.
Evidence shows that legal empowerment interventions—when designed and executed intelligently—can make the law work for people, even in broken or weak systems. Legal empowerment interventions have strengthened the ability of people to equitably resolve conflicts; to seek protection from violence and to navigate the criminal justice system. Substantial research suggests that it is crucial—both for preventing conflict and for fostering development—that citizens have access to practical remedies when they face injustice.
In Sierra Leone there has been recognition that one of the factors that drove young men into joining the insurgency during the country’s civil war was a lack of access to a remedy when faced with local injustice, often at the hands of traditional courts.
Kenya has already taken many steps towards improving legal empowerment and access to justice for all citizens. These include; the adoption of the Constitution of Kenya 2010 with focus on Article 48- Access to justice for all, the establishment of the government sponsored National Legal Aid and Awareness Programme (NALEAP) and the continued provision of legal aid by different civil society organizations. In the wake of extremist violence, Kenya must continue to strengthen these gains and ensure equal access to justice for all.
Insecurity and crime have been identified as major challenges to the right to life in both urban and rural areas of Kenya. The rise of violent crime over the past few years has heightened the sense of insecurity among citizens. Still, many crimes continue to go unreported; citizens have cited police corruption, brutality- including extreme examples of extra judicial killings – as reasons for not reporting crimes. Citizens must be encouraged to report crimes and complaints, including those against the police and law enforcement institutions, and once reported, have action taken in a timely manner.
Multiple actors have a role to play in creating these routes to justice, since public security is the responsibility of all there is need for partnership between the police and prison services, government departments, civil society organisations, legal aid service providers and citizens.
Governance and Corruption
While there is no one reason to explain why people join extremist movements, desperation, criminality and power hungry are highlighted most commonly as motives. One which is often overlooked is the role of the government.
A 2014 Carnegie report illustrates that a loss of state legitimacy leads to increased violence, with new research showing that extremism is not born out of desperation alone, but as a reaction against corruption. This report highlights that when governments systematically behave in criminal or unjust ways, the ‘very fabric of society begins to fray. High-level organized corruption underestimates the agency of ordinary people – their perceptions of corruption and the increasing tendency of populations to lash out violently against governing systems they can no longer tolerate’.
Moreover, acutely corrupt governance can provide havens and logistical support for those very groups governments are trying to tackle, as officials look the other side in exchange for a bribe. A renewed effort must be made to tackle corruption as part of efforts to combat violent extremism.
A reputable justice system can tackle corruption and improve the accountability of government efforts. A UNDP research has shown that inclusive service delivery and anti-corruption measures further enhance trust and legitimacy of institutions. In addition, right to information (RTI) laws present a significant opportunity for building responsive governments. Reports looking at the power of using right to information laws in Bangladesh and India in social accountability illustrate how RTI laws are being used today to uncover corruption and press for effective delivery of state services.
Kenya is on the right track with the Access to Information Bill 2013 ready to be introduced in Parliament and advanced efforts at establishing the International and Organized Crimes Division which aims, among other things, to combat all forms of organized crime, including terrorism.
Countries with lower levels of poverty and inequality are better placed to combat violent extremism. In the just concluded post-2015 intergovernmental negotiations on means of implementation and global partnerships for sustainable development held on the 21st -24th of April in New York, Ambassador Macharia Kamau stated inequality within our country has become one of the most pressing and undermining drivers in our democracy and to our peace and security in our own country. The World Bank demonstrated the relationship between conflict and poverty noting that ‘a country that experienced major violence over the period from 1981 to 2005 has a poverty rate 21 percentage points higher than a country that saw no violence’. The Geneva Declaration completed a statistical analysis on the impact of conflict and armed violence on the MDGs, finding that there is a direct relationship between homicide and poverty levels, asserting that higher poverty levels tend to go hand-in-hand with higher levels of violence. In addition, according to the World Bank, terrorist violence reduces foreign investment, with a “doubling of terrorist incidents in a country estimated to reduce bilateral trade with each trading partner by some 4 percent”. Conversely, research by the Institute for Economics and Peace shows that per capita income increases as peacefulness increases.
Enabling people with access to justice is essential to combating poverty in a meaningful way; it allows people to exert control over their lives, to earn money and protect their livelihoods. The consequences of weak legal empowerment are practical and debilitating. When people cannot resolve their grievances in an equitable manner, they cannot run their businesses, own property or access essential services. Many people are forced to take matters in their own hands. Consequently, crime and exploitation flourish.
In addition, citizens must be able to understand, use, and improve the laws and institutions that govern them. Legal forums for obtaining redress and resolving conflicts must be effective. Justice systems must apply the rule of law consistently, adopting measures that account for social and economic barriers. These related principles strengthen the legal empowerment of all people, enhancing their ability to demand justice.
It is recommended that to break cycles of insecurity and reduce the risk of their recurrence, national reformers and their international partners need to build the legitimate institutions that can provide a sustained level of citizen security, justice, and jobs—offering a stake in society to groups that may otherwise receive more respect and recognition from engaging in armed violence than in lawful activities, and punishing infractions capably and fairly.
In concluding, it must be noted and with appreciation, the efforts of the government in trying to address terrorism and extremist violence. Some efforts have been criticized as failing to address the root causes of violence, focusing instead on short term ‘catch all’ reactionary measures to punish the perpetrators of atrocities. These short term measures intended to improve security can play into the hands of terrorist organisations that intend on provoking extreme reactions to activate a sense of injustice and create frustrations amongst marginalised groups. Long term strategies by the government include introducing security lessons in the school curriculum as well as the latest contributions by Kenya through Ambassador Macharia Kamau during the post-2015 intergovernmental negotiations on means of implementation and global partnerships for sustainable development held on the 21st -24th of April in New York in which he stated that the post 2015 global Goal 16 on access to justice is linked with addressing the issue of terrorism. He stated that “Terrorism is a real issue for us, and our Goal number 16 and many other goals are looking to address these issues fundamentally. The question for us [member states] is, how are we going to put together a Post 2015 Development agenda that recognises the challenges that we face between these very issues that I have spoken to [inequality and terrorism] and that seeks to find the means of implementation and the resources to address those very fundamental challenges that we face here at the dawn of the 21st century”
It is indeed hoped that through post-2015 agenda, most specifically Goal 16 on access to justice, that durable holistic solutions will be found in the fight against terror.
Kituo Cha Sheria-Legal Advice Centre