Elly Wamari
22 April 2008
analysis
Nairobi — Kenya is about to undertake a crucial exercise towards national rebirth.
A Truth, Justice and Reconciliation Commission (TJRC), which is in the process of being established after a similar attempt in 2003 became stillborn, is being regarded by researchers and civil society groups as a grand opportunity for the much needed renaissance of the nation torn apart by injustices.
The latest vicious manifestation of drawn-out discord among Kenyans was the bloodshed and destruction of property occasioned by the disputed presidential results of the December 2007 General Election. More than 1,000 people were killed and 300,000-plus displaced in the post-election violence. Many of the displaced people are still living in camps, either unable to go back home or afraid to do so because of trauma.
Now a draft Bill towards final legislation of a TJRC to look into such violations and other past ills is in place for further discussion.
The formation of the TJRC was recommended by the National Dialogue and Reconciliation Committee set up to sort out the political mess that sparked the bloodletting in January.
The tone of the advice that analysts are beginning to bring to the table concerning the TJRC is that the opportunity should not be squandered. There have been one too many commissions whose recommendations have never been taken seriously by the State.
The Ndung'u Land Commission and the Goldenberg Commission are two major examples.
For the next two years that the TJRC is scheduled to run, Kenyans will be involved in a process that may be the only opportunity for an eventual resolution of outstanding disharmony that has existed in the country since independence.
The commission, which is being mandated to look into and offer remedy for historical injustices, economic crimes such as grand corruption and irregular acquisition of land, politically motivated violence, and displacement of communities, among other vices, is quite crucial. Failure of the process would lead to an immense disappointment that could see the country slip deeper into the abyss of disharmony.
That is why recent research by scholars George Wachira and Prisca Kamungi, involving a microscopic assessment of tested truth and reconciliation commissions (TRCs) in other parts of Africa, such as Ghana, Sierra Leone, Liberia and South Africa, comes in handy.
Their findings could provide vital lessons for Kenya in the form of challenges, expectations, and the perceptions that may need to be considered before the TJRC begins to operate.
Wachira, who is a peace advocate and a research and policy adviser, together with Kamungi, a researcher and political scientist, are seeking to contribute towards informed preparedness for Kenya's TJRC's work. Their research provides a template that seeks to avoid mistakes made in similar commissions elsewhere.
In a research paper for Nairobi Peace Initiative Africa (NPI-Africa) titled Truth and Reconciliation Commissions and Transitional Justice in Africa: Lessons and Implications for Kenya, Wachira and Kamungi point out that while truth commissions generally present good objectives and provide a forum for discussing "a denied and painful past", many are times when they fail to meet the expectations of the victims of violations.
Vehicles of impunity
The paper criticises TRCs in the studied countries for failing to fully implement victim-friendly recommendations. Instead, they are often quick to offer amnesty to perpetrators, creating perceptions of TRCs as "vehicles of impunity".
"Given the poor follow-up on recommendations, particularly those pertaining to reparations to victims in the context of great material need as in the case of South Africa, Sierra Leone and Ghana, TRCs are viewed as largely facilitating the very impunity they set out to reverse as perpetrators get away without accountability, while the victims' needs are not met," state Wachira and Kamungi in their report.
In South Africa, for example, the TRC, headed by Nobel Peace laureate Archbishop Desmond Tutu, contributed immensely towards a harmonious transition from the apartheid era to a democracy. It is widely hailed as the main factor that midwifed South Africa's smooth socio-political change over.
However, according to Wachira and Kamungi, the South African TRC model only provided space for public hearings of victims' stories, and like several others, failed to ensure accountability by perpetrators.
Because of that, inter-community acrimony is still rife in South Africa. The injustices brought about by apartheid haunt and sideline the South African black community to date in the form of limited employment opportunities, for example, because the apartheid system had deprived them of useful education in the first place.
Broader justice
"In this sense, the South African TRC may have circumvented the execution of a broader justice and reconciliation policy agenda that would have stretched well beyond the immediate transition. In the absence of this broader agenda to deal with the deprived of apartheid, the catharsis afforded by the TRC was short-lived for the majority who remain underprivileged," state the researchers.
During interviews in South Africa, Sierra Leone, Ghana, and Liberia, Wachira and Kamungi noted that the general view of respondents with regard to experiences with TRCs was that while the processes held potential for reconciling communities, their failures were in meeting expectations of victims in areas where these were not spelt out.
Further, the general trend was that only victims presented themselves before the commissions, while perpetrators either stayed away like in the case of South Africa and Sierra Leone, or engaged the commission in diversionary legal battles.
How then, does Kenya avoid similar shortcomings, aware that a failure of the suggested TJRC would be a disastrous emotional drain for the country and a letdown to victims of violations?
For a start, suggest Wachira and Kamungi, Kenya should carefully weigh the mandate of its TJRC and "articulate clear and realistic goals" that must be communicated to the public.
The inclusion of "justice" in Kenya's suggested reconciliation commission, for example, has positive connotations but heavy implications for the country. It is a clear statement that unlike the other TRCs, Kenya's model is intending to give attention to justice for victims of violations, which, indeed, is the very suggestion that the researchers are offering on behalf of NPI-Africa.
They state in the abridged version of the report: "Given the previous use of violence and of displacement and dispossession of people as a political strategy, the TJRC should send a strong signal that this is inconsistent with the requirements of peace and justice."
In that regard, Wachira and Kamungi suggest that the TJRC should avoid the pitfall of equating wrongs.
"There can be no justification for the taking of a life of another innocent Kenyan and those responsible should face prosecution and public censure," states the research document.
The researchers are suggesting that the design of the awaited TJRC should embrace a comprehensive agenda for reconciling the ugly facts about the country - both historical and emerging - with recommendations that encompass a return to peace, accountability on the part of perpetrators, and satisfactory reparations for victims.
The TJRC should lead to a re-establishment of trust among communities, and because violations may be unique, the suggestion is that there should be no blanket amnesty to perpetrators.
The Kenya National Commission of Human Rights (KNCHR) also emphasises this point in its reaction to the proposed formation of the TJRC.
"The remote perpetrators, leaders, and planners of the type of violations that have taken place in Kenya in recent weeks must never be exempted under any circumstance. To do so would be a travesty of justice," it states in its February document discussing the commission's position over the modalities of the establishment of the TJRC.
To realise this, it will be necessary for the design of the TJRC to define its specific goals with regard to each of three pillars that form its existence - truth, justice, and reconciliation. The commission should also outline follow-up mechanisms to ensure implementation of recommendations beyond the commission's two-year lifespan.
Heavy mandate
Hopefully though, there will be provision for extension of the TJRC's life should there be need. Analysts argue that two years may not be enough for the TJRC to achieve its heavy mandate; not when it took the South Africa's TRC 18 months in preparations alone.
According to Wachira and Kamungi, the TJRC, in its design, must also include clear definitions of victims and perpetrators. It should have sensitive aspects of the process, such as reparations and amnesty, negotiated beforehand and documented.
The commission should further enjoy operational independence, which means protecting it from partisan political and ethnic agendas that could dilute its undertaking.
Government's commitment towards implementation of the recommendations must be secured upfront.
But Kenyans must also have rational expectations from the TJRC, and not presume that it will be the panacea for all solutions of the various forms of violations that have been experienced in the country.
"Kenyans should have realistic expectations of the TJRC, and should not expect it to resolve all current and past problems," advises the NPI-Africa report, which suggests, therefore, just like KNCHR does, that broad consultations, including the involvement of the public, be engaged in the design of the process for greater ownership.
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