Reparations: Not just a big word.

One of the biggest aspects of Transitional Justice - the concept of using justice measures to emerge from conflict into a peaceful society - is the concept of reparations.  Reparations, as the name might suggest, are measures that are taken to repair the harm of past injustices.  That's a broad definition, and is purposefully open-ended.  Often, an outside perspective sees the easiest way of 'compensating' for loss or harm is to give people money - that is the foundation of our normal, civil court systems.

But, compensation, especially monetary compensation, is really a limited method of resolving issues.  There is a tangible difference between ‘doing justice’ and ‘repairing harm’.  In fact, it is often the case that the Justice System is incredibly poor at repairing harm, especially in the criminal justice system.  Crimes are prosecuted by the state, and in most circumstances, victims have a very limited role to play – generally they are involved as witnesses, and not often as much else.  And, for anyone that’s been inside a courtroom, let alone participated as a witness, well, it can be a trauma of its own.  In fact, a major concern for reparation schemes is the issue of re-victimization – oftentimes, if processes are engaged in that are not empathetic to a victim’s situation, forcing a victim to participate via re-living past experiences can itself be a very damaging exercise.

So, the very first concern that a reparations scheme must work from is – what do the victims need?  A reparations scheme necessarily needs to be victim-centered, because you are not going to mend any wounds by simply throwing money at people.  Worse, there can be all sorts of other negative consequences of that.  Being victim-centered means being alive to the various and myriad wants, needs and expectations of people that have suffered in the past.

But, the very next concern is practicality.  It is all well and good to understand all the things that victims want, need, and deserve.  But, how is it going to be paid for?  And by whom?  That is a massive problem.  Even if a Government is willing to come forward and publicly acknowledge and apologize for its role as a perpetrator (see Canada), most governments would be bankrupted by the size and scope of some of the historical violations of human rights.

The final concern, taking the first two into consideration, is what measures will be taken to effectively meet those needs, in a financially feasible way?  Unfortunately, a lot of discussions about this turn to very academic and theoretical discourse.  They talk about the social utility of memorialization, or of collective, community reparative mechanisms.  In fact, in a lot of jurisdictions, a lot of pretty creative things have been tried – for example, in one situation, a community was given a lump sum of money, a collective reparation, in trust, and was given the task of democratically deciding how that money was going to be used.  They could use it to build a school, divide it up, build roads, etc.  But you can only get so creative – meeting victim’s needs, and allocating from a limited pool of money are two things that never really manage to be ideal.  In fact, the question is not so much about what measures are going to be taken, but how the measures can be implemented without disappointing too many people.  It’s absolutely a sobering fact.

At a recent Reparations meeting with a variety of Civil Society Organizations, there were some really high level discussions on this topic.  The favored option was for collective reparations, as they tended to be more economically suitable – the main issue, one person argued, was that there needs to be constant, ongoing, and meaningful communication between the administrative body setting up reparations, and the particular community – that way the community feels a sense of ownership over the project.  It’s not just a school that pops up out of nowhere, built by a bunch of people they don’t know, but it’s a school that they build, they name, and they can feel pride in.  I felt good about that.

The next week, I attended a Grassroots Education Outreach with some of the community leaders from around Nairobi.  There were many different topics chosen, but one thing was clear – “we don’t want new roads, schools, or statues.  The Government always does that, and it’s the Government that has the cars to drive on the roads to go to the schools.  We want compensation.”  (That’s not a direct quote, but I think it went something like that).

There are two problems.  Well, there are probably many more than just two, but the two I think are key are:

1. The poorest and most vulnerable people tend to suffer the greatest violations.
2. There is a cultural, linguistic, empathetic barrier between academic elites and victims.

In other words, those least capable of defending themselves are often the most affected by conflict, and those most privileged with knowledge and training (and probably the least affected) don’t seem to understand, or perhaps lack the perspective to effectively connect with the victims.  And seeing as I belong to the latter group, there are things I want to avoid thinking:

1. That we need to practically come up with a scheme that will fit our financial constraints
2. That I think that reparations scheme X is best suited for victims
3. That there’s no point in giving impoverished victims compensation, just because they won’t know how to use it

As soon as I think those thoughts, I will be slipping into a patronizing mentality, and the chance for true healing is far, far away. 

In Kenya, we are unfortunately in that situation now, as ICJ Kenya, and a small group of CSOs are working to develop the entire reparations mechanism for past injustices in Kenyan history (dating back from 1963 to present).  The massive scope of the exercise probably necessitates a massive, comprehensive, and well-thought out reparations scheme.  The prospect that I may be able to make a significant contribution to this is an exciting opportunity for me, and will be a great experience.  But the fact that I have never had any meaningful engagement with any victims is worrisome.  How can I be responsible for a massive undertaking to provide assistance to people that I have never met, and never had the opportunity to understand?

It would be very easy to slip into a mentality of making decisions for people I don’t know.  And that is the heart of the issue here.  When you give something to someone because you feel sorry or obligated, but do not get to know that person, that, to me, is the definition of pity.  And pity is a poor motivating factor for positive social change.

I am not sure I know what the right balance is, but I’ll let you know how things go, and whether our attempt gets to a better balance than some other attempts.