Truth Commission: Kenya

Truth Commission: Truth, Justice, and Reconciliation
Duration: 2 years anticipated
Charter: Truth, Justice and Reconciliation Commission Bill
Commissioners: 7
Report: The commission is still in session.

Truth Commission: Truth, Justice, and Reconciliation Commission (TJRC)

Dates of Operation: The TJRC started its preparatory work in 2009. Public hearings began in January 2010. Section 20(1) of the Bill stipulates that the Commission shall operate for two years, not including a three-month preparatory period.

Background:
Kenya’s December 2007 Presidential elections sparked a wave of violent clashes over allegations of electoral fraud. The protests broke along ethnic lines, causing greater civil unrest. Nearly 1,500 people were killed and almost 300,000 were forced to flee their homes. In January 2008, negotiations between the incumbent and opposition parties brokered by the African Union's Panel of Eminent African Personalities and former UN Secretary-General Kofi Annan were initiated. This resulted in a power-sharing coalition government among President Mwai Kibaki and Orange Democratic Movement leader Raila Odinga. The process produced agreements to establish several commissions of inquiry, including the Commission of Inquiry on Post-election Violence, the Independent Review Commission on the Elections, a National Ethnic and Race Relations Commission, and the Truth, Justice, and Reconciliation Commission.

The Independent Review Commission on the General Elections, also called the Kriegler Commission, found in its September 2008 report that politicians on all sides incited violence. It recommended the creation of a special tribunal to try those responsible for perpetrating violence. The Commission of Inquiry into Post-Election Violence, called the Waki Commission, issued its report shortly after the first commission. The Waki Commission privately submitted names of individuals implicated to Kofi Annan.

In late October 2008, the Kenyan Parliament unanimously passed the bill for creating the 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.

Charter: In late October 2008, the Kenyan Parliament passed the Truth, Justice, and Reconciliation Commission Bill (PDF-117KB). President Mwai Kibaki signed the bill into law on November 28, 2008.

Mandate: The TJRC is 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. The TJRC is tasked to establish as complete a picture as possible of the causes, nature and extent of the post-election violence, including unresolved injustices such as the distribution of land and state resources. The mandate includes politically motivated violence, assassinations, displacements and major economic crimes such as grand corruption and irregular acquisition of land. The Commission is mandated to recommend policies with regard to reparations for victims, to recommend prosecutions, and the creation of institutions conducive to a stable and fair society. The Commission’s charter contains provisions for individual amnesty procedures if the Commission is satisfied that the applicant has made full disclosure of all relevant facts. The mandate stipulates that all findings of the Commission will be made public.

Commissioners and Structure: The commission is currently composed of seven members, four male and three female. While the TJRC Bill stipulated that the Commission would be composed of seven members, it started with nine members, but two of them resigned in 2010. Currently, four members are Kenyan citizens and the three other commissioners are foreigners (from Ethiopia, the United States of America, and Zambia) nominated by the Panel of African Eminent Personalities, the group who helped negotiate the power-sharing deal in Kenya. The President made the final appointments from the list of individuals nominated by the selection panels. After controversies surrounding chairman Bethuel Kiplagat, and the resignation of prominent human rights lawyer Betty Kaara Murungi as vice chair, Kiplagat stepped down in 2010. Tecla Namachanja Wanjala is the Acting Chairperson. 

Report: The commission has not yet published a report.

Subsequent Developments:

Prosecutions

  • According to the charter, the commission will be complementary to the prosecution of human rights abuses during the post-election violence, either by an international tribunal in Kenya or by the International Criminal Court (ICC). The relationship between the commission and a prosecution process, however, had not been clarified.
  • In spring 2009, Parliament turned down the Constitutional Amendment Bill for a Special Tribunal for post-election violence. On 31 March 2010, the ICC opened an investigation into the post-election violence. Six individuals, including the deputy prime minister, an ex-minister, and an ex-police chief have been summoned to appear before the Court in The Hague. The Kenyan government said it would challenge the ICC's jurisdiction. 

Reparations

  • Section 41 of the TJRC Bill suggests that victims may apply to the commission for reparations.

Special Notes: Numerous civil society groups and legal experts have criticized the bill for inconsistencies that allow for amnesties for human rights violations, exclude of victims from the process, and fail to offer sufficient protection for witnesses. Kenyan Nobel Laureate Wangari Maathai expressed concerns that the Commission would perpetuate the culture of impunity.

Sources:

Amnesty International. 2008. Kenya: Concerns about the Truth, Justice and Reconciliation Commission Bill. AI Index: AFR 32/009/2008. Available at http://www.amnesty.org/en/library/asset/AFR32/009/2008/en/8903d721-2667-11dd-b995-f7269e5ea55f/afr320092008eng.pdf (accessed December 13, 2008).

Bronkhorst, Daan. Kenya's Truth Commission: What is Wisdom? Radio Netherlands Worldwide, October 28, 2008. Available at http://beta.rnw.nl/international-justice/article/kenyas-truth-commission-what-wisdom
(accessed December 13, 2008).

Dolan, Gabriel. Kenya: ICC will handle Politicians, but who will tame Police? allAfrica.com, November 7, 2008. Available at http://allafrica.com/stories/200811080054.html (accessed December 13, 2008).

International Center for Transitional Justice. Kenya: ICTJ activity. 2008. Available at http://ictj.org/our-work/regions-and-countries/kenya (accessed May 12, 2011).

International Criminal Court. "Statement by the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo at the Press Conference in Kenya", November 9, 2009. Available at http://www.icc-cpi.int/NR/rdonlyres/A8CB4DE4-47E3-4D26-BEE9-5193DD43E965/281187/PRKenya0911092.pdf (accessed January 20, 2010).

Kenya Gazette Notice No. 8737, Appointment of Commissioners, August 14, 2009, Vol. CXI-No. 70. Available at http://www.law.co.ke/KenyaGazette/view_gazette.php?title=3224 (accessed January 20, 2010).

Kenya set to get Truth Commission. BBC News, October 24, 2008. Available at http://news.bbc.co.uk/2/hi/africa/7688505.stm (accessed December 13, 2008).

Kenya: Spread the blame: Politicians, the Police and the Electoral Commission are all being pilloried. The Economist, October 23, 2008,. Available at http://www.economist.com/world/mideast-africa/displaystory.cfm?story_id=12480425 (accessed December 13, 2008).

"Kenya to challenge ICC case over post-poll violence." BBC News, March 9, 2011. Available at http://www.bbc.co.uk/news/world-africa-12693847 (accessed March 14, 2011).

"Kenya truth commission chief Kiplagat steps aside." BBC News, November 2, 2010. Available at http://www.bbc.co.uk/news/world-africa-11678835 (accessed March 14, 2011).

Kwayera, Juma. New Law will give Waki Suspects Escape Route, warn Experts. The Standard, November 8, 2008. 

Maathai, Wangari. "Don't be fooled by the Kenyan TJRC." Pambazuka News, August 6, 2009. Available at http://pambazuka.org/en/category/features/58279 (accessed January 20, 2010).

Office of Government Spokesperson. November 28, 2008. Truth, Justice and Reconciliation Act 2008 Signed into Law. Available at http://www.communication.go.ke/print_media.asp?id=758 (accessed December 13, 2008).

Report of the Commission of Inquiry into Post-Election Violence ("Waki Commission"). October 15, 2008. Available at http://www.dialoguekenya.org/docs/PEV%20Report.pdf (accessed January 1, 2009).

Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007 ("Kriegler Commission"). September 17, 2008. Available at http://www.dialoguekenya.org/docs/FinalReport_consolidated.pdf (accessed January 1, 2009).

Republic of Kenya, Makau Mutua, and Kiraitu Murungi. August 26, 2003. Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission. Nairobi: Government Printer. Available at http://marsgroupkenya.org/pdfs/2008/march_2008/Kenya_Report_of_the_Task_Force_on_the_Establishment_of_a_Truth_Justice_and_Reconciliation_Commission_August_26th_2003.pdf (accessed December 13, 2008).

"Truth, Justice and Reconciliation Commission." Available at http://www.tjrckenya.org (access March 14, 2011). 

July 1, 2009
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