“Forgiving is not forgetting; it is actually remembering – remembering and not using your right to hit back. It is a second chance for a new beginning. And the remembering part is particularly important. Especially if you do not want to repeat what happened,” Archbishop Desmond Tutu, Chairperson – South African and Truth Reconciliation Commission.
The Truth Justice and Reconciliation commission spent over a billion shillings and its report could remain un-implemented because of lack of political will
Moi and Kenyatta
Since independence in 1963, Kenya has witness several gross human rights violations, repression of dissent and theft of public funds. Both Kenyatta administration (1963-1978), and Moi administration (1978-2002) oversaw numerous forms of violations to stay in power.
During their administration, any form of dissent was interpreted as a de facto personal affront to the president rather than [a constructive criticism of] the presidency.
Creation of a Truth, Justice and Reconciliation in such an environment became untenable, since the state was the biggest purveyor of human rights violation.
The 2002 Elections
But after being in power since independence, the Kenya African National Union (KANU) lost the 2002 elections to the National Rainbow Coalition (NARC) – a coalition of opposition parties.
Naturally, since many of them bore the brunt of KANU’s repression, upon assuming power, the new administration wanted to form Truth, Justice and Reconciliation Commission (TJRC) to inquire into historical injustices, massive or systemic human rights violations, economic crimes and the illegal or irregular acquisition of land committed by the previous ruling party.
Consequently, April 17, 2003, by a special issue of the Kenya Gazette, the Kenyan government through Hon. Kiraitu Murungi, the Minister for Justice and Constitutional Affairs, appointed the Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission.
Makau Mutua, a law professor and the Chairman of Kenya Human Rights Commission- was appointed to chair the Task Force on the establishment of a Truth, Justice and Reconciliation Commission.
The Mandate of the Task Force
The terms of reference of the Task Force were to recommend to the Minister for Justice and Constitutional Affairs whether the establishment of a truth, justice, and reconciliation Commission was necessary for Kenya.
If so, “the Task Force was mandated to recommend to the Minister how and when such a commission should be established; the membership of such a commission; the terms of reference of such a commission; the powers and privileges that should be conferred upon the commission in the execution of its mandate; and the historical period to be covered by the commission’s investigations. The Task Force was empowered to make such further recommendations incidental to the foregoing, as it may consider necessary”.
After public hearings, the Task Force presented its report the Minister for Justice and Constitutional Affairs August 26, 2003. The debate about the establishment of Truth, Justice and Reconciliation was shelved since the administration lost the political will until the 2007-2008 electoral violence. However, during the Kofi Annan led mediation, the formation of a Truth and Justice became an imperative.
And October 2008, the Kenyan Parliament unanimously passed the bill for creating Truth, Justice and Reconciliation Commission to investigate and recommend appropriate action regarding abuses committed between the country’s independence in 1963 and the conclusion of the power-sharing deal of February 28, 2008.
The 2007-2008 electoral violence, and the subsequent mediation by the former UN Secretary General Kofi Annan gave the formation of the TJRC further impetus. The commission was established as part of the Agenda Four of the National Reconciliation and Dialogue Accord spearheaded by Annan.
According to the TJRC Act- The law that established it, the commission’s objective were promoting peace, justice, national unity, healing, reconciliation and dignity among the people of Kenya.
Specifically, the TJRC was mandated to investigate and recommend appropriate action on “human rights abuses” committed between December 12, 1963 and February 28, 2008, when President Kibaki and Prime Minister Raila Odinga signed the peace and power-sharing deal.
This included politically motivated violence, assassinations, displacements and major economic crimes such as grand corruption and irregular acquisition of land.
However, after being launched with fanfare, the commission was beset with leadership crisis.
Commission’s work and the leadership crisis
Few months after starting its work, the commission’s chair Bethuel Kiplagat was accused of being a party to some of the atrocities the commission was meant to investigate. The Chairman denied any involvement. This dragged on for a while.
The wrangle impeded the smooth operation of the commission because it brought unnecessary spotlight. After a while, to facilitate the smooth operation of the commission, the Chair was asked to step aside until his name was cleared.
The law that established the commission- the 2008 Truth, Justice and Reconciliation Act, envisaged such a situation. And the remedy was, the Chief Justice will form a tribunal to establish the veracity of allegation against the accused individual, and declare whether he’s either fit or unfit to lead the commission.
The fight to force the chair to step down until he clears his names paralyzed the commission, with some commissioners threatening to quite unless he steps aside. Indeed the Commission Vice Chair, Betty Murungi, one of the most qualified to serve, resigned from the commission over the controversy. The parliament stepped in and gave the commission an ultimatum, either put your house in order or they’ll be disbanded in 72 hours.
After intense public pressure the embattled Chairman stepped aside, but he went to the High Court and obtained an injunction against the tribunal, which as a result never commenced its work. Subsequently, after the tribunal had lapsed, he approached the court again, which ruled that without a tribunal in place to investigate him, the court cannot decide on the matter. This gave the embattled chair a reprieve and he resumed his position.
By this stage majority of Kenyans were tired of ceaseless fight surrounding the commission. This lost the commission a great deal of public goodwill.
Further, amidst the wrangling, the commission’s constant seeking of extension of its terms also engendered public fatigue. Initially, the commission’s term was meant to expire November 3 2011. However, the commission sought an extension, which it was granted.
This meant the commission would release its report May 3rd 2012. But commission again failed to release its report as per this deadline, and was given a further extension to November 3rd 2012. This extension was contrary to the law that established the commission.
Altering the substance of the report
Compounding the cloud of suspect leadership that besieged the work of the commission, altering of the commission’s report contrary to the 2008 Truth, Justice and Reconciliation Act, raised serious questions about the integrity of the commission’s final report. In particular, the reported interference in the land section- a central driver of electoral conflict In Kenya, by the present administration, casts a significant integrity question on the commission’s work.
Additionally, the subsequent amendment of the 2008 Truth, Justice and Reconciliation Act by the Parliament to give itself the power to amend the report flies in the face of addressing impunity which is central to the formation of the commission in the first place.
While the TJRC Act doesn’t explicitly provides for the Parliament to adopt the report in its entirety, but reports of such commissions are tabled in parliament such that it can take note. This is because the Executive will approach Parliament to allocate funding for implementation of the recommendations.
Above all, despite the president receiving the commissions’ report May 21 2013, and the report being published in the Kenyan Gazette- the official government, June 7 2013, and tabled in parliament, albeit perfunctorily act, but instead of being debated and adopted as is required by the TJRC Act, the Parliament focused on changing the TJRC law to give themselves power to ‘consider’ the report. This means that the requirement for the appointment of an implementation committee and the deadline of six months given in the Act during which implementation should commence have all been missed.
Despite all its failings, the TJRC formation and its report form a reasonable basis for a debate and subsequent policy intervention.