Kenya’s Truth, Justice and Reconciliation Commission

The appointment of the Justice, Peace and Reconciliation Commission (TJRC) is a welcome development. The TJRC is expected to investigate gross violations and abuses of human rights in Kenya and make appropriate recommendations for interventions. The exercise will cover a wide range of issues (including post-election violence) and is intended to promote peace, justice, national unity, healing and reconciliation, as part of Agenda Four of the National Dialogue and Reconciliation Accord. This is perfectly in order and all people of goodwill will embrace this process.

But there is a problem. The TJRC will deal with issues only between 12 December 1963 and 28 February 2008, the period in which Kenya has been independent. This begs the question: what will happen with critical violations that existed before and at independence and which remain outstanding to this day? By confining proceedings to the period after 1963, the TJRC Act presumes that independent Kenya inherited a clean house from the colonial authorities. This is obviously a preposterous presupposition.

The drafters of the TJRC Act were no doubt aware that many violations and abuses, particularly with regard to land, are carry-overs from the colonial period and therefore leaving them out through the “cut-off” commencement date would be an act of injustice itself. Yet, historical land rights are possibly the single most important issue that ails Kenya today, from Coast to Central to Rift Valley provinces.

It is unfortunate that all the TJRC Act says about the land question is “illegal acquisition of public land” and repossession. While repossession of grabbed land is perfectly in order, the question of land and historical injustices linked to them are a different matter that ought to have be included in the objectives of the TJRC. The problem of historical displacement and the failure by government to institute restitution or compensation after independence is the crux of the matter and not unlawful acquisition of “public land” that has never created friction among the people.

Many Kenyans may not be aware that significant land settlements (not restitutions) were carried out between 1960 and 1963 during Kenya’s transition to independence following the successful deliberations of the Lancaster House Constitutional Conference in 1960. These were intensified after the elections of 1961 and were soon dubbed the Million Acre Scheme, to buy out jittery white farmers and transfer their subdivided farms Africans. The programme carried out under a succession of government bodies, including the Interim Settlement Board, the Land Development and Settlement Board, the Interim Central Land Board, the Central Land and finally the Settlement Fund Trustees of June 1963, settled 35,000 families on 1.2 million acres of purchased European farms. The settlement of the families may not be a bone of contention, but what is deeply resented by those whose land was expropriated by colonialists is the failure by government to address the question of restitution.

If this TJRC will not deal with land grievances that existed prior to 12 December 1963 then it will have missed the point and consequently postponed an emotive problem that will not go away.

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