Truth Commission: Kenya

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

Dates of Operation: As of May 2009, it has not yet started its work. The Selection Panel transmitted a short list of names in late April to the National Assembly. Section 20(1) of the Bill stipulates that the Commission shall be inaugurated within twenty-one days of the appointment of its members and 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 charter says that the commission will be composed of seven members. Four of them will be Kenyan citizens selected by a panel the Minister of Justice will appoint. The three other commissioners will be foreigners nominated by the Panel of African Eminent Personalities, the group who helped to negotiate the power-sharing deal in Kenya. The National Assembly and the President will make the final appointments from the list of individuals nominated by the panels. The selection panel has been asked to consider gender equity and regional balance.

Report: The commission has not yet started its work and 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. The relationship between the commission and a prosecution process, however, had not been clarified.

Reparations

• The TJRC Bill suggests that victims may apply to the commission for reparations; however, this will not be possible until the work of the commission is underway.

Special Notes: Numerous civil society groups and international experts sharply criticized the bill for allowing amnesties for human rights violations, for excluding victims from the process, and for failing to offer sufficient protection for witnesses. Legal experts claim that the charter is fraught with inconsistencies and contradictions.

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/en/where/region1/648.html (accessed December 13, 2008).

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).

Kiguta, Anne. Kenya proposes Truth and Justice Commissioners. Capital News, April 21, 2009. Available at http://www.capitalfm.co.ke/news/Local/Kenya-proposes-Truth-and-Justice-Commissioners-4130.html (accessed April 24, 2009).

Kwayera, Juma. New Law will give Waki Suspects Escape Route, warn Experts. The Standard, November 8, 2008. Available at http://www.eastandard.net/InsidePage.php?id=1143998898&cid=4 (accessed December 13, 2008).

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).