Resolving the post-election violence and developing transitional justice institutions through power sharing : power and ideology in Kenya's quest for justice and reconciliation : a justice without punishment?

Since February 2008, the Kenyan government and society have been the focus of continued debate and sustained criticism from the global human rights and transitional justice community concerning the authenticity of the multiple transitional justice mechanisms that have been implemented in the country. Drawing from more than four years of fieldwork in Kenya and nearly 160 interviews with major Kenyan policymakers, Internally Displaced Persons (IDPs), local and international NGOs, public intellectuals, retired judges, international legal commentators and human rights advocates in Addis Ababa, Cape Town, Geneva, London, Paris, and The Hague, this thesis identifies the political logic behind the justice-and reconciliation-seeking policy initiated by the Kenyan National Dialogue and Reconciliation (KNDR) policy. In its consideration of the complexity of defining and executing justice and reconciliation in the aftermath of the 2008 crisis in Kenya, this thesis attempts to explain how the continuing effort to increase democratisation and implement reforms following the post-election violence has inaugurated the use of a new language of transitional justice policy. It argues that such precarious trends present more instructive opportunities for–as well as obstructions to–international engagements in Kenya. Revisiting the reflections of Critical Peacebuilding Scholarship (CPS) and Critical Legal Studies (CLS) on the administration of justice, this thesis suggests that the interaction between transitional justice and liberal peacebuilding exhibits a precarious condition for navigating law and politics in post-conflict reconstruction studies. However, it also suggests that the success of this interaction depends on the ability of the international society to understand that a liberal cosmopolitan conviction of justice, peace, reconciliation, accountability and mitigating impunity via the International Criminal Court (ICC) and the national Truth, Justice and Reconciliation Commission (TJRC) has not addressed the needs of the victims or succeeded in combating the infamous legacy of impunity in Kenyan politics. The utilitarian approach to understanding retributive and restorative theories of transitional justice is inimical and univariate, and excludes the local political contingency of Kenyan history. Consequently, it fails to provide a sound understanding of the power relations and ideological apparatus of the ICC and TJRC in the neo-patrimonial logic of Kenyan politics. Drawinng on Michel Foucault's theory of power and Louis Althusser's theory of ideology, this thesis suggests that the IDPs' needs for justice and reconciliation are not satisfied by the solutions prescribed by international policymakers and the Kenyan ruling class. This thesis concludes that further attempts to empower the IDPs through transitional justice mechanisms have suffered from the overwhelming politicisation of justice in Kenya and the call for a greater recognition of the logic of neopatrimonialism in policing justice in Kenya. By recognising the transitional justice mechanisms' inability to resolve 'everything', or to implement a one-size-fits-all policy of liberal peace in Kenya's recent democratic crisis, this thesis illustrates how the IDPs used everyday acts of resistance as a mode of survival. It also shows how the ICC's intervention and the release of the TJRC report have made the environments in which the IDPs live more hostile and difficult, which has hindered the process of normalising and reintegrating them back into society. Challenging the narrative of peaceful 2013 elections in Kenya and demystifying the successful political reconciliation that Kenya's Government of National Unity (GNU) claims to have effected, this thesis reveals how the ICC and TJRC have become forms of disciplinary technology and ideological apparatus with which the ruling class disenfranchises and marginalises the IDPs, and keeps the "hidden transcript" regarding state, law and politics away from the eyes of the ordinary populace.