Feature Reflection

Agenda 4: Struggles in Kenya

The Kenyan parliament is in the process of debating The Truth Justice & Reconciliation Bill aimed at addressing past injustices while serving a function of transitional justice. Transitional justice aims at sustainable reconciliation and the consolidation of embryonic democracy in societies in transition. Transitional Justice comprises such mechanisms as violence prevention, interventions, the empowerment of victims and other vulnerable groups, relationship building and institutional transformation programmes. Transitional justice initiatives help redressing the injustices and damage to the social fabric (both material and psychological) that are rooted in a divided past. Full story below...

News and Events

Amnesty of Justice

Prime Minister Raila Odinga insists that youth arrested following the post-election violence should be freed unconditionally; the president on the other hand insists that the government will not spare those who organised the gangs that caused mayhem. The issue of amnesty was initially a matter limited to their camps in the cabinet, but now president Kibaki and Prime minister Raila Odinga have publicly taken opposing positions.

Kenyans are desperate to see this coalition survive. They know that the consequences of its failure could lead to a meltdown that plunges this country into yet another conflict. We should not be arguing whether or not there should be amnesty, but working out the modalities for conflict resolutions between the two protagonists. We should be discussing whether waiting indefinitely for the truth, justice and reconciliation mechanism is unfair to those in custody, and how they can be freed speedily until the relevant commission is ready to hear them.

 

Truth, Justice and Reconciliation Commission: Kenya

Rita Njau

Communities recovering from periods of conflict often design mechanisms to address past injustices and serve the function of transitional justice. In Uganda, the Acholi Religious Leaders forum has worked extensively in trying to reconcile the Lord’s Resistance Army and the local communities of Northern Uganda. In Somali, Clan heads representative of the various war lords have begun peace building meetings. In the process, Somali women have organised themselves as a clan in order to have a woman head of clan sit in the peace building processes. The Kenya National Dialogue and Mediation Team, agreed on the formation of a Truth, Justice and Reconciliation Commission (TJRC) to address the social injustices in Kenya from 1963 to events following the post election crisis. The Truth, Justice and Reconciliation Commission Bill dated 9th May 2008, is a special issue to introduce the said Bill into the national assembly.

Reading through the Bill as a concerned party holding brief for those who seek to address the structures in society that serve to tackle social injustices, a few issues stick out. The fact that it is a draft document, suggests that amendments are welcomed by the national assembly as they read through the document. Some amendments that would inform their debate are detailed below.

The introduction of the Bill indicates that one of its purposes is to hold accountable those found guilty and not to forgive. Part 11, section 5 (n) and (q), emphasizes the non retributive nature of the functions of the commission and the space to confess actions, respectively. In order to actively cater for reconciliation, there is need to consider introducing the aspect of restorative justice which then opens the door for forgiveness.

On the selection panel as expounded in part 11, section 9(1) whereas gender concerns are embraced, persons with disability have not been considered to consist the panel. This further perpetuates the marginalisation they suffer, hence there is need to consider their inclusion in the selection panel. Further on section 10 (1)(a) and (b) on the membership of the commission: seven members are rather few for a commission whose Terms of Reference  for 2  years only spans over a period of 45 years. Given that the commissioners may be required to visit most parts of the country if not all, there is need to consider their expansion to eleven (11) members to cater for the exigencies of work.

Consideration of application for amnesty, Section 36 (9) (c) details that subject to the provisions of section 25, “the confession or admission shall not be used in any court proceedings against the applicant whether or not amnesty is granted”. In this breath the Act goes to protect the perpetrator without taking into account the victim’s pain or need to see justice be done. Worse still there is no provision for legal support to the victim to ensure the veracity of evidence provided by the perpetrator. Section 36 in its composition does not categorically state whether the TJRC will provide amnesty, who will qualify for it and how the amnesty will be effected. The amnesty issue remains a grey area.

Part IV section 41 on reparation needs to elaborate the form or types of reparation that will be provided. The listing needs to take cognisance of the effects of post election violence on inflation and include as a minimum, reparation in form of financial, education and health services.

One of the key themes of the commission, reconciliation, is lacking in the act. Reference is made to reconciliation in passing. E.g. in part II section 5 (objectives of the commission) (q)”...a forum to confess their actions as a way of bringing reconciliation;” (2) Subsection (1)”...with a view to promoting or achieving justice, national unity and reconciliation...”  There is an urgent need for a chapter or section on reconciliation. Details on reconciliation as practised could include national reconciliation, community reconciliation, individual reconciliation, traditional values and methods informing reconciliation, reconciliation ceremonies, and symbolic acts of respect to the dead and monuments and memorials, among others.

Part IV on reparation and rehabilitation, fails to drum up support for restoring relations – a key component of restorative justice. Given that retributive justice is not significant in the proposed act, and reconciliation is a key theme which augurs well with certain items on Agenda No. 4(long term issues & solutions), the act needs to be explicit on restorative justice. A restorative system of justice is one that will include accountability, truth telling, acknowledgements, reparation and rehabilitation.

As advocates of social justice, what we want the TJRC to emphasise is the need for truth, justice, reparation, reconciliation and lustrations. Persons holding public and/or leadership office, found to have engineered and/or contributed to crimes against humanity need to resign and never hold any public office in their lifetime, hence the call for lustrations.

Rita Njau is the Advocacy Officer and Programme coordinator at Jesuit Hakimani Centre, Nairobi

 

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