Lessons from Chile for Kenya: Take Heart, the Fight for Accountability is Long

The experience in Chile shows that the quest for justice has been a long one.  As Kenyans come to terms with the failure of the International Criminal Court investigation and slow pace of domestic accountability for crimes committed during the post-election violence that occurred over nine years ago, they can perhaps learn from the painful experiences of Chile and other countries from around the world that ultimately, with sufficient perseverance, victims can achieve justice.

It has been almost 27 years since the end of the dictatorship of General Augusto Pinochet, and under the democracies that have followed, one persistent problem has been the pursuit of justice – but only “insofar as it is possible,” to paraphrase former president Patricio Aylwin. This phrase, rather than conveying the outcome of a problem, sums up a political decision to obstruct proper trials by national courts of those responsible for human rights violations. However, despite this obstruction, prosecutions are finally ongoing for violations committed during this period.

The first democratic government of Patricio Aylwin, who was in power from 1990-1994, made progress in identifying the names of disappeared and executed detainees, but in terms of justice the government only managed to bring a few cases before the courts for prosecution. These cases were labelled “emblematic;” in other words for the government there were priority victims and the rest were second or third class.

The following government of Eduardo Frei, who served as president from 1994-2000, showed no interest in human rights. The presidency obstructed the investigation of corruption involving army commanders and Pinochet and his family. During this period, Pinochet assumed his role as a senator-for-life, a position which he only resigned from under the terms of a law that would guarantee his immunity (or rather impunity). This changed in 1998 when he was arrested in London under an order issued by the Spanish judiciary, on the basis of the principle of universal jurisdiction, to address impunity for crimes committed during the dictatorship. In the face of this arrest, the Chilean government and armed forces – arguing, falsely, that he was in poor health – took various steps which resulted in the ex-dictator’s return to Chile.

The third government of  President Ricardo Lagos from 2000-2006 began with Pinochet getting up out of his wheelchair in Santiago airport and crowds chanting “Try Pinochet!” in front of the palace at La Moneda, Chile’s presidential office. Under this presidency, the man appointed head of the armed forces, Juan Emilio Cheyre, was someone who had allegedly participated in crimes committed during the dictatorship who, as one of Pinochet’s trusted commanders, had been named as regional governor. During this administration a committee was created to establish the names of victims of political imprisonment and torture, but the reports were kept secret for years.

This all shows that in Chile there has been no state commitment to prosecute perpetrators; on the contrary, efforts have been made to hinder the progress of truth and justice. This started to change little by little following the arrest of Pinochet in London and the increasing proof that his serious illness and subsequent dementia were stunts that the authorities and officials participated in.

However, due to the determination of the families of the victims and others, including some state institutions and officials, it has been possible to persevere. To date significant advances have been made in terms of truth, higher rates of access to justice, and broad social awareness, or at least widespread discussion, condemning human rights violations.

I believe that since 1990 the greatest obstacles in accessing justice have been put up by the government and, to a lesser extent, by some members of the judiciary. In effect, the authorities, including state ministers, have taken it upon themselves to put in place a series of obstacles (mainly in cases where the perpetrators were part of powerful networks) and tried to influence the possibility of prosecuting perpetrators, including by putting pressure on police officers carrying out investigations. Several members of the judiciary have been reluctant to implement current legislation on human rights, and it is clear that they have sought to favor former officials.

An additional difficulty is that some officials, well-known for their work or just for their rhetoric on human rights, have weighed in and expressed support for leniency or freedom for the perpetrators, which has tended to legitimize impunity. For example, there are prosecutors in these proceedings who have defended officials and others who have even declared their support for the perpetrators etc. There are also cases of “human rights defenders” or their children who have been hired on authorities’ orders to work for the government, which hampers their necessary independence.

Despite the difficulties, proceedings are under way, dozens of defendants are awaiting sentencing, and a small number of appropriate sentences have been handed down. There is still a long way to go in cases related to the dictatorship, current cases of police violence, ending military protection of perpetrators, and the involvement of members of the armed forces in corruption. However, what is beyond dispute is that perseverance creates the scope and opportunity for the defense and promotion of human rights.  This has been demonstrated not only in Chile, but in many other situations, such as in the tireless 25-year fight of victims for the investigation and prosecution of crimes committed during the 1980s in Chad, which led to the recent trial and conviction of Hissène Habré in Senegal.  It is a lesson that I hope Kenyans will take to heart. The fight for accountability will be a long one, but the victims demand that we do all in our power to end impunity and bring perpetrators to justice.

Cristián Cruz has a degree in law from the Universidad de Chile and has been a lawyer for victims of human rights violations in his country for many years, including for many victims of crimes committed during the Pinochet military regime, in power in Chile from 1973 to 1990.  In particular, he represented the families of victims in the famous recent “Caravana de los Muertos” case, which involved the prosecution of the former commander-in-chief of the Chilean army, Juan Emilio Cheyre, who was charged with complicity in the killing of 15 left-wing activists in 1973, at the start of Pinochet’s regime.  He also represented victims in the recent “Quemados” case in which two teenage protestors were beaten and set on fire by a military patrol in 1986. The views and opinions expressed here do not necessarily reflect the views and opinions of the Open Society Justice Initiative.