Community Perceptions of Kenya’s Transitional Justice Process: Assessing the Inclusion of Marginalised Groups
INTRODUCTION
Marginalisation refers to the often systematic or deliberate exclusion of particular groups from social, economic, and political processes. The challenges such groups face vary depending on their context, which highlights different types and sub-groups of marginalisation. This research examines the marginalisation of two informal settlements in Nairobi: Kibera and Mathare. It explores the inclusion of marginalised groups, specifically women and the hard-to-reach youth in these informal settlements, in transitional justice processes.
Informal settlements in Nairobi have been in existence for a long time. Residents of these informal settlements have developed a system to coexist with one another, despite the vast challenges that accompany their experiences of marginalisation. The uniqueness of these forms of coexistence is based on informal local mechanisms such as Nyumba Kumi [ten households] and community policing committees that residents have used over time. Using locally led traditional conflict resolution mechanisms, these committees have helped foster long-term coexistence, reconciliation, and the creation of support and social welfare groups that are the backbone of social cohesion and community resilience in these two informal settlements.
Conflict in informal settlements often arises due to challenges linked to marginalisation such as poor sanitation, lack of proper infrastructure, vulnerability to manipulation by both religious and political leaders, exclusion from development agendas, and limited employment opportunities that contribute to economic disadvantage. These conflicts have significant impacts with ripple effects in other areas. The most prominent example is the 2007–2008 post-election violence that led to more than 1,000 fatalities across the country. More recently, in 2023, anti-government protests showed similar dynamics. The conflict began in one informal settlement and spread to other informal settlements, resulting in looting, death, injuries, road blockages, work restrictions, property destruction, and economic sabotage, affecting all communities in Nairobi, including middle- and upper-class areas.
Transitional justice refers to the set of processes and mechanisms that aim to deal with the past and prevent the recurrence of violence in post-conflict societies. Transitional justice processes can include truth commissions, trials, reparations, amnesty, institutional reforms, and memorialisation that are key in addressing the root causes of conflict for sustainable peace, especially in informal settlements. Transitional justice is important for post-conflict societies because it can help acknowledge victims (survivors), hold perpetrators accountable, restore the rule of law, promote healing and forgiveness, and foster social cohesion. To communities in the informal settlements in Nairobi, the term “transitional justice” is a new one, yet to be internalised by the communities that live there.
This does not mean, however, that these communities have no mechanisms or activities in place to promote healing, reparation, reconciliation, forgiveness, or restitution, among others. As one female international NGO worker explains, “When transitional justice became the catchword, the rest were forgotten. But this doesn’t mean they are not happening. This is basically conflict transformation.”
Informal settlements are often the hardest hit by conflict and violence. They are known as sites of resistance and easy mobilisation. This research therefore focuses on the involvement of marginalised communities in transitional justice processes and locally led conflict resolution mechanisms that have promoted individual and community resilience. Marginalised groups often include ethnic minorities, women, the poor, and youth [mostly male youth]. While disproportionately affected by conflict and violence, these groups frequently lack representation in transitional justice processes. For example, women and youth may not have their voices heard in truth commissions or reparations programmes, leading to justice outcomes that do not fully address their specific harms or needs.
The research upon which this article is based highlights the need for context-specific transitional justice approaches, considering the unique challenges and dynamics of marginalised communities in areas such as Kibra and Mathare. It emphasises the intentional inclusion of marginalised groups from the outset (particularly women and the hard-to-reach youth) to strengthen existing conflict resolution mechanisms, enhance aware- ness, and foster shared responsibility in implementing transitional justice. By integrating already well-known and established local traditions and practices like alternative dispute resolution (ADR), into national and international justice mechanisms, significant progress can be made towards achieving justice and reconciliation in these communities.
RESEARCH METHODOLOGY
The study upon which this article is based explores how marginalised populations participate in and view transitional justice processes. It combines theoretical insights on transitional justice and informal settlements with empirical findings, comparing them to existing literature. The research employed a qualitative methodology, utilising semi-structured interviews, with participants selected through purposive and snowballing sampling to ensure diverse perspectives.
A total of 20 (11 female; 9 male) key informant interviews were conducted with key stakeholders, including community members, religious leaders, government representatives, a transitional justice commissioner, civil society organisation (CSO) representatives, academics, activists, and community leaders. Four focus group discussions (FGDs) were conducted with 52 participants (32 female; 20 male), with single and crossidentity groups, including 1 male youth only group; 2 females only groups; and 1 group with both male and female. The FGDs brought together diverse community members who have been affected by conflict or engaged in transitional justice processes at the local level. The literature review (desk study) analysed a range of reports, articles, and official documents related to transitional justice and the specific context of Kibera and Mathare.
The research also embraced a participatory framework by involving community members in the research process. This approach enhances the credibility and relevance of the research findings by directly involving those affected by the issues under study. It was also vital in ensuring the inclusion of marginalised voices and perspectives often excluded from formal decision-making processes. Community engagement occurred through consultative meetings, the FGDs, and collaborative analysis sessions, in which participants could share their experiences, insights, and recommendations regarding transitional justice.
BACKGROUND CONTEXT
Kibera and Mathare are the first and second largest informal settlements in Kenya, respectively. According to a UN-Habitat report, Kibera is considered the largest contiguous slum settlement in Africa, with a population of more than 750,000 people. The Nubian word “Kibra” means forest. This informal settlement originated as a forest reserve settled by Nubian soldiers. Mathare is home to around 500,000 people and began as a quarry site occupied by rural migrants. A Kikuyu word, “Mathare” means branch. Historical conflicts in these areas have often been fuelled by political tensions, ethnic divisions, and socio-economic disparities with deep roots that date back to colonial times (1920–1963), when land dispossession was government policy and institutionalised discrimination, and marginalisation were commonplace practices. The post-independence period saw continued neglect and marginalisation of these informal settlements, exacerbating social inequalities and creating fertile ground for conflict. As a male community leader from Kibera succinctly puts it:
Anybody living in Kibera is a marginalised person. Irrespective of your tribe, race, or nationality, living in shanties is a marginalised person. So, the fact that some people want to classify themselves as marginalised and others as not marginalised, how do you become not marginalised when you are living in a mud house like another person? All of us are marginalised.
The role of the Kenyan government in the conflicts in the informal settlements is complex. While the state has often been implicated in perpetrating violence or neglect, it has also occasionally intervened to mitigate conflicts or provide essential services. This is done through local administrative offices such as the deputy county commissioners, chiefs, and assistant chiefs. To address local conflicts in these informal settlements, community policing committees have emerged through the Nyumba Kumi initiatives. Community policing is regularly cited as a key factor in resolving conflict at the local level. While effective, these administrative and community structures continue to face challenges due to the exclusion of marginalised groups, especially women and youth. Processes led by local administrative units have also often been marred by corruption and inefficiency.
LITERATURE REVIEW
In the evolving field of transitional justice, the inclusion of marginalised groups has become a focal point for ensuring comprehensive and equitable redress for past injustices. The literature underscores the importance of integrating diverse voices, especially those who have historically been excluded from justice processes, to foster genuine reconciliation and societal transformation. Scholars argue that transitional justice must move beyond traditional legalistic frameworks to embrace a more holistic approach that addresses structural barriers and power imbalances perpetuating marginalisation. This shift towards a more inclusive transitional justice is seen as essential both for addressing the root causes of conflict and for the creation of sustainable peace. Studies highlight the need for mechanisms that are not only reparative but also transformative, capable of reshaping societal relations and empowering those at the margins. The literature calls for a reimagining of transitional justice that is participatory and responsive to the needs of all community members, including women, children, the elderly, and people with disabilities, ensuring that their experiences and perspectives shape the justice agenda. The inclusion of marginalised groups is a crucial aspect of transitional justice strategies, requiring a commitment to addressing systemic inequalities and fostering deep-seated change.
While inclusion of diverse voices is emphasised, the literature on transitional justice nonetheless has gaps and limitations, especially in terms of examining processes that have been able to include marginalised and hard-to-reach populations, such as those who live in the informal settlements of Nairobi. These populations often need help accessing and benefitting from transitional justice processes and outcomes, such as the need for more awareness creation at the local level, adequate representation of marginalised communities, protection of witnesses, victims, or perpetrators, and sufficient resources for implementation. Marginalised groups also have specific needs and expectations that may differ from or conflict with those of other groups or actors involved in transitional justice processes. This is based on the unique aspects, magnitude, and intersectionality of marginalisation for different groups, all of which present different challenges.
With most studies focused on national or regional transitional justice processes, specific case studies of cities and informal areas are sparse. Nonetheless, there are some existing studies that provide insights and evidence on how informal settlements are both affected by, and affect, transitional justice processes in various ways. On the one hand, informal settlements have the potential to contribute to transitional justice, as they have the resources, networks, and capacities to engage with and benefit from these processes and outcomes. Local informal networks in communities are crucial in identifying both victims and perpetrators to participate in transitional justice processes, with village elders and community leaders often consulted to map out who these actors are. Informal settlements can also challenge and transform transitional justice by offering alternative or complementary perspectives and practices of justice, peace, and reconciliation. A number of different types of activities have significantly influenced change, including community “barazas” [public meetings], dialogues, peace walks, friendly sport tournaments, informal gatherings such as the “Bunge la wazee” [ Parliament of the elderly is a local male community gathering that discuss day to day context, and organised pressure or advocacy groups. On the other hand, informal settlements have specific needs and expectations in terms of transitional justice, such as the recognition of their rights, the provision of reparations, genuine participation in decision-making, and protection from further violence.
Looking at Kenya specifically, some studies show that the Truth, Justice, and Reconciliation Commission (TJRC) has had a mixed impact in the informal settlements. While the TJRC has provided a platform for truth-telling and documentation, it has also faced challenges of accessibility, credibility, and follow-up. Similarly, other studies indicate that the International Criminal Court proceedings following the 2007–2008 post-election violence, played a controversial role in the informal settlements, as they generated both hope and fear, as well as support and opposition, among settlement residents, depending on their ethnic, political, and personal affiliations. In contrast, some studies suggest that the constitutional and institutional reforms that were undertaken have positively affected the informal settlements by introducing new provisions and mechanisms to improve resident representation, participation, and service delivery.
The literature on transitional justice in informal settlements in Kenya also discusses how grassroots advocacy on transitional justice can be enhanced in informal settlements and what the best practices and recommendations are for doing so. One study offers a wide range of strategies, including:
• Building trust and dialogue among the diverse and marginalised communities in informal settlements.
• Strengthening the capacity and coordination of the civil society organisations and community-based groups that work on transitional justice in informal settlements.
• Increasing the awareness and education of the residents on their rights and responsibilities regarding transitional justice.
• Ensuring the inclusion and participation of the residents in the design, implementation, and monitoring of transitional justice mechanisms.
• Addressing the structural and systemic causes of violence and injustice in informal settlements, such as poverty, inequality, and marginalisation.
• Promoting the local and indigenous forms of justice, peace, and reconciliation that already exist or emerge in informal settlements.
Kenyan scholars and practitioners have developed various frameworks and structures as discussed in the research to effectively integrate marginalised groups into transitional justice processes to ensure that they are just, equitable, and reflective of community needs.
TRANSITIONAL JUSTICE PROCESSES IN KENYA
The Kenyan TJRC was established on 23 October 2008, shortly after the 2007– 2008 post-election violence, through the enactment of the TJR Act by the national assembly. The TJRC is mandated to launch an inquiry into historical injustices and human rights violations, starting from independence in 1963 up until February 2008, after the post-election violence. TJRC operations involve several different types of activity: statement taking; research and investigations; hearings; and report writing. The TJRC has ensured the inclusion of special and marginalised groups for example, children, whose statement forms were prepared with special consideration in collaboration with child protection agencies. As a marginalised group, women were given special consideration in the form of women-only hearings, called “conversations with women,” that aimed to create a safe space to address women-specific violations.
Despite these efforts, the TJRC nonetheless faced challenges in terms of fully including marginalised groups from the informal settlements. In Kibera and Mathare, outreach efforts often missed the most marginalised (notably, women and youth) due to a lack of trust and accessibility. In terms of the TJRC findings on extrajudicial killings and forced disappearances occurrences that largely affect youth as either victims or perpetrators - data from the informal settlements suggest that while some community voices were heard, many felt excluded from the process. This is especially the case for those youth who either suffered from human rights violations or committed them. Considering the number of young people who were killed during the post-election violence, however, there was a clear need to include youth voices. Moreover, many youths who committed crimes were actually engaged by politicians to provide security, which highlights a further need for more grassroots-focused strategies in transitional justice initiatives.
Offering greater detail about the challenges of inclusion, a female community mobiliser from Mathare explains how people were chosen to participate in the TJRC process:
The selection for the hearing was done through community mobilisers [third parties]. Despite knowing the real victims, at times they were biased and selected people based on who they knew could articulate themselves very well or would not fail them ”wanachagua watu wao” [they choose their own people]. Also, there was a notable “kuja wewe unaweza ongea” [come, you can talk] kind of mobilisation. Not because you have the information needed, but simply because you can sustain a conversation.
After conducting research and hearings, the TJRC report was published in four volumes. The fourth volume includes TJRC recommendations on the implementation mechanism and reparations framework to prevent future violations. The report was presented to the then President of Kenya, Uhuru Kenyatta, on 21 May 2013. To date, however, the people of Kenya are awaiting implementation of the TJRC recommendations. As a male community leader from Kibera describes this situation: Yes, the community participated in the hearing and the evaluation of the TJRC report. This is why there are some hard-hitting chapters in the report. This makes the government— the people in the current government very jittery about implementing it.
KEY FINDINGS AND ANALYSIS
Inclusion of marginalised groups
This research reveals a significant gap in the inclusion and participation of marginalised communities in transitional justice process at both local and national levels. While the challenges of community participation can be experienced in any initiative, they can be mitigated by proper planning for engagement, including participation in transitional justice processes. There are a number of different challenges that contribute to exclusion in participation, as indicated. Inadequate resources often hinder participation, resulting in only a small section of affected communities being reached. Addressing root causes and underlying conflict factors, overcoming trauma from violent pasts, and implementing reparation frameworks are among the approaches that require significant financial resources. This study reveals that women who have experienced sexual abuse, particularly rape, often fear being victimised and choose to live in different communities or remain silent to avoid stigmatisation, highlighting the significant impact of such experiences on their lives. A female rape survivor from Mathare explains, “Rape is not something to talk about. You can even be shamed in front of people. We only talk about it with people who are not from our community.”
The TJRC process implemented a special hearing for women called “conversations with women”, ensuring their participation and creating a safe space for engagement. Other organisations also provided special programmes for women, such as women’s talking circles and meetings for mothers of victims. Despite these activities, there is a gap in community awareness regarding the stigmatisation that women experience. This has contributed to the choice of self-exclusion and remaining silent rather than seeking help or justice. Lack of sensitisation on the transitional justice process may also lead to self-exclusion and negative rumours. The TJRC process in Kenya did incorporate community sensitisation information as a crucial part of demystifying rumours. These efforts were, however, overpowered by community expectations and rumours about both the potential benefits (compensation) and consequences (risks of reporting against the government) of participation.
Generally, Kenya has made strides in improving gender equality and justice, but many women and girls remain marginalised due to traditional beliefs, religious barriers, poverty, inadequate social inclusion, and pervasive gender norms. Despite the implementation of policies such as the National Gender and Equality Commission Act of 2011,23 progress remains uneven. Most marginalised Muslim women from the Nubian and Borana communities in Kibera indicate that their participation in community engagement is highly determined by their spouses (they need permission to participate) or community leaders (who speak on behalf of the rest of the community). This also applies to the transitional justice process. A female participant from the Nubian community in Kibera elaborates:
Although we are affected by the conflict, our community does not allow us women to take part in these processes, especially our neighbours, the Borana. They say we will bring shame to the community, while others are afraid to talk about their challenges due to stigmatisation.
A male youth from Kibera emphasises the importance of involving marginalised groups, such as children, the elderly, and people with disabilities, in the transitional justice process. He states, “The women, elderly, and disabled are sometimes included, but not all the time. Unlike the disabled, they are disregarded. If they are included, it is to rubberstamp the process, but they are not fully included.” This quote illustrates the need for inclusive participation in transitional justice processes, as marginalised groups often feel or actually are excluded and ignored by the formal mechanisms that are supposed to address their needs and grievances.
The selection criteria to participate in formal transitional justice processes are perceived to be influenced by factors such as third parties, self-interest, corruption, and nepotism. Community feedback suggests that people were selected based on how well they were known, potentially excluding those who never reported their experiences. Given that focus is on survivors of human rights violations, deliberate planning for the intentional inclusion of marginalised groups, especially hard-to-reach youths, contributes to their participation in transitional justice processes. The TJRC process, however, left out hard-to-reach youth (whether victims or perpetrators of violence). This research highlights the importance of including both victims and perpetrators in transitional justice processes, thus demonstrating the need for a more comprehensive approach to the inclusion of hard-to-reach youth.
Study findings indicate that the community emphasises the importance of considering the engagement period for marginalised groups. In particular, women and youths often do casual labour. If engagements are conducted during their work hours or on weekdays, they are not able to participate, despite the importance of their doing so. This highlights the need to adopt timing that takes these constraints into consideration. Language barriers significantly impact the inclusion of marginalised groups in the transitional justice process. To ensure effective participation, this must be addressed. Despite participant fears of engagement due to language barriers, most ADR and TJRC processes do consider these factors by including local translators and community actors to lead or support implementation. The inclusion of marginalised groups in the planning and evaluation of projects is also crucial for effective and sustainable transitional justice processes. Given that they often face unique challenges, this requires their inclusion at the beginning to design effective and sustainable initiatives.
GOING FORWARD: INCLUSION AND TRANSITIONAL JUSTICE PROCESSES IN KENYA
In some ways, the TJRC has learned from its failures of inclusion. Today in Kenya, several key frameworks and structures promote the inclusion of marginalised communities residing in informal settlements in transitional justice processes. For example, the National Inclusive Development Framework takes a comprehensive approach. It ensures marginalised groups not only gain recognition, but actively participate in transitional justice initiatives. This framework emphasises legal and policy reforms that acknowledge the historical roots of marginalisation. It also advocates for establishing joint coordination structures. These structures facilitate the inclusion of marginalised voices in transitional justice decision-making processes. Moreover, the Vulnerable and Marginalised Group
Framework (VMGF) outlines interventions and activities designed to mitigate negative effects on marginalised groups and promote their active engagement in societal affairs, including transitional justice mechanisms. This framework also has institutional arrangements for assessing project-supported activities and ensuring that marginalised groups are identified and represented in project sites.
In terms of structures, the Legal Aid Act of 2016 represents a significant step towards unlocking access to justice for marginalised communities. This act aims to provide legal assistance to those who cannot afford it, particularly in marginalised and rural communities, thereby facilitating their involvement in transitional justice processes. To further support the inclusion of marginalised groups, the National Gender and Equality Commission plays a crucial role in promoting gender equality and freedom from discrimination for all people in Kenya, focusing on special interest groups such as women, children, youth, persons with disabilities, the elderly, minorities, and other marginalised groups.
The implementation of these frameworks, structures, and targeted solutions can significantly improve the inclusion of marginalised communities in Kenyan transitional justice processes. At the same time, the challenges that the TJRC faced agenda politicisation, insufficient awareness of policy, insufficient resources also hinder the effective implementation of these policies and frameworks. In particular, transitional justice reparations mechanisms, such as the TJRC reparation framework, require significant financial resources to compensate victims. These are, however, largely unavailable.
Despite these challenges, the government and the non-government actors can ensure that transitional justice delivers justice and empowers communities. Positively, since 2008, frameworks to promote inclusion have been developed. Nonetheless, there is an ongoing need to raise awareness through culturally appropriate outreach and equipping marginalised communities with the knowledge and skills to participate effectively. This research underscores the significance of context-specific transitional justice approaches, considering the unique challenges and dynamics of communities such as Kibera and Mathare. The insights emerging as a result of community participation in this research focus on key concepts such as sensitisation, engagement periods, selection processes, gender equality, language, and inclusion (from the beginning) in project development. By addressing these areas, transitional justice processes in Kenya can foster local inclusion and engagement, while integrating national and international justice mechanisms. In this way, meaningful progress can be made toward achieving justice, reconciliation, and the prevention of recurrent violations in these communities.
