Kenya is at a critical juncture in its 45-year history since independence, caught in a desperate attempt to secure sustainable peace, justice and reconciliation after the violence that followed the December 2007 elections. In pursuit of this goal, the Kenya National Dialogue and Reconciliation (KNDR) signed two crucial agreements, creating:

1. A Truth Justice and Reconciliation Commission (TJRC) to investigate historical gross human rights violations (2006 and earlier); and
2. The Commission of Inquiry into Post-Election Violence (CIPEV) to address grave post-election atrocities (2007 onwards).

Both bodies are non-judicial.

It is worth noting that the KNDR process was negotiated and agreed between ‘The Parties to the National Dialogue and Reconciliation, together with the Panel of Eminent African Personalities, with a view to promoting the greater interests of the nation as a whole.’ This makes it mandatory that subsequent processes arising from the negotiation framework meet international standards. Accordingly, the KNDR process is an international, and not just a national, process.

Public participation in the TJRC process right from its inception is critical in order to guarantee legitimacy and ownership by the people. More importantly, it ensures that the truth, justice and reconciliation process is carried out in a manner beneficial to Kenyans. To the extent that Kenyans are well-informed and able to meaningfully engage in the process, it is insulated from political interference and special interests. These conditions ensure a people-centred, effective and credible truth, justice and reconciliation process.

The TJRC is a means and not an end to excavate Kenya’s historical injustices and gross human rights violations, and also to address economic crimes and land grabbing. It plays a critical role in shaping future Kenyan society. The establishment of a truth commission must be seen as part of an overall strategy to address massive human rights and humanitarian law violations. Often serving as an initial component of a broader effort, a truth commission can play a vital role in setting the stage for additional efforts to overcome impunity and promote reconciliation.

No Kenyan wants the Truth Justice and Reconciliation Commission to be yet another empty commission. Kenya had seen several commissions of inquiry over the years. None of these commissions resulted in any meaningful changes or reforms. Their recommendations were largely ignored by government. To avoid this, the TJRC ought to have sharp teeth, just like the Waki–CIPEV commission. The TJRC should not rely heavily on historically discredited and state-weakened institutions to achieve its objectives.

Sadly, Kenya’s Truth Justice and Reconciliation Commission bill was signed into law by the president on 29 November 2008 with little public consultation, despite protests from civil society. It is deeply flawed; state driven, state-owned, and skewed to resemble an amnesty commission. It omits the best practice and international standards expected in a truth commission, particularly the necessity of independence.

The centrepiece of the law is an inappropriate and unnecessary amnesty mechanism for human rights violations, economic crimes and even international law violations. The amnesty provisions facilitate impunity for perpetrators in several ways:

1. The legislation says that the TJRC will make its recommendations for amnesty to the attorney general. The attorney general has no constitutional or legal power to grant amnesty. This figure can ignore those recommendations or simply refuse to prosecute.
2. The law has been left open-ended as to whether the attorney general is obliged or even legally authorised to cease prosecution for a crime on the basis of a TJRC recommendation.
3. Further, the law empowers the TJRC to recommend to the attorney general amnesty in cases of civil proceedings and where persons have already been convicted, despite the fact that the attorney general has no legal authority to act.
4. The law talks of ‘conditional amnesty’ without stating at any point what criteria the amnesty will be ‘conditional’ upon.

Hence, the amnesty provisions as presently formulated are likely to invite protracted legal challenges.

Victims are at a significant disadvantage in the amnesty recommending process. The commission will not recommend amnesty until it ‘has considered any reasonable objection from victims’, but it is unclear how far victims will be notified and involved, or have the opportunity to submit such reasonable objections, if a hearing into the case is not held. This is especially likely in the case of economic crimes, offering an escape clause to the powerful and the corrupt through the TJRC process.

Major obstacles are placed in the path of the women, marginalised communities, and poor Kenyans in securing reparations. The TJRC is required to assess and make recommendations on individual applications for reparations from victims of gross human rights violations. The application process is cumbersome and likely to raise unrealistic expectations. How can such reparations be processed without an upfront decision on the scope of those human rights violations and the principles of reparation? In essence, the primary objective of reparations – a guarantee that the crime won’t be repeated – is completely obscured.

The TJRC may recommend the ‘mechanism and framework’ for the implementation of its recommendations. The law requires the government to establish whatever body has been recommended by the commission ‘to monitor the implementation of the recommendations and to facilitate their implementation’. These requirements are manifestly unconstitutional, contravening the separation and allocation of executive powers as established by Kenya’s constitution. There is no requirement for the National Assembly to consider and debate the commission’s findings and recommendations; nor is there any requirement for the government to present its strategy for the implementation of the recommendations to the National Assembly.

Two kinds of justice are called for in Kenya at this moment. The first is retributive justice: a full implementation of the recommendations made in the Waki report on post-election violence, particularly through the creation of a special tribunal to prosecute leading instigators, and a radical overhaul of state institutions. The second kind is reparative, for the historic crimes and human rights violations committed before 2007. An effective and credible Truth Justice and Reconciliation Commission (TJRC) would pick up from where the Waki recommendations stop.

Tragically, the deep flaws outlined above in the TJRC law makes it virtually impossible to deliver the accountability, genuine national healing and reconciliation that Kenyans are so hungry for.

* Ndung’u Wainaina is executive director of the International Center for Policy and Conflict, Kenya.
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