Catholic Information Service for Africa (Nairobi)
16 May 2008
London — Kenya's draft bill to establish a Truth, Justice and Reconciliation Commission is flawed and should be amended, Human Rights Watch said.
The global rights watchdog urged parliament to revise the recently published bill before it becomes law.
"The national dialogue and reconciliation process was supposed to create institutions that can address Kenya's historical injustices and bring criminals to book for their crimes," said Georgette Gagnon, Africa director at Human Rights Watch. "But as currently drafted, the commission has serious flaws that must be urgently addressed by parliament, especially its amnesty provisions."
According to Amnesty, the serious questions that parliament must address in the committee stages of revising the bill are:
The amnesty provisions as proposed are inconsistent with Kenya's obligations under international law, which rejects impunity for serious crimes, such as genocide, war crimes, crimes against humanity, and torture. International treaties, including the UN Convention against Torture, the Geneva Conventions, and the Rome Statute of the International Criminal Court, require parties to ensure alleged perpetrators of serious crimes are prosecuted. Kenya has ratified each of these in addition to numerous other human rights treaties.
Although the draft law states that the Commission will not grant amnesty for "crimes against humanity or genocide within the meaning of international human rights law," it does not mention war crimes or acts of torture not amounting to crimes against humanity. The bill should provide that the Commission will comply with established international human rights law and should clearly exclude amnesty for genocide, crimes against humanity, war crimes, and torture.
The bill should also make perpetrators of crimes of sexual violence ineligible for amnesty.
The independence of the Commission is severely compromised in the current draft because Article 40 gives the Minister for Justice and Constitutional Affairs the power to scrutinize and approve the Commission's expenses, allowances and budget. This provision effectively gives the government control over the activities of the commission.
Article 23 of the draft bill gives witnesses immunity, but Article 3 says the Commission is a legal body that can sue and be sued. The Commission should be given immunity from being sued for its actions as a court to prevent it being obstructed by spurious lawsuits.
Kenya has had numerous previous bodies that have documented many of the crimes under scrutiny by the Commission. Where comprehensive and clear recommendations have been made before (such as those of the Ndung'u Commission, the Akiwumi Report, and the Kiliku Report), the Commission could simply require their implementation.
The draft appears to limit its work on land issues to the "irregular and illegal acquisition of public land." All illegal land deals should be the subject of investigation.
Nowhere in the draft does it clearly state that the work of the Commission will not replace conventional police investigations and prosecutions, nor should the existence of the Commission be an excuse for such investigations to cease. It should be stated that the police response to recent and previous crimes is of vital importance and should continue in the normal way.
The draft bill gives the Commission only two years to address all forms of historical injustices, including corruption, land issues, and reparations for victims. This array of injustices is very wide. It would be better if the Commission was given a much longer life.
Read comments. Write your own.
Copyright © 2008 Catholic Information Service for Africa. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
In the Kenya Standard newspaper of the May 12th. 2008, certain quotes raises many questions. While opening the Induction programme, President Kibaki called for integrity, saying those who shall be implicated in corruption must step aside. “ you will be expected to treat Kenyans equally and to ensure that corruption and misuse of public resources does not take place under your watch. In this regard you would also be expected to step aside to allow for investigation, should your name be mentioned adversely with regard to corrupt or other unethical conduct”, President Kibaki said. According to the newspaper the President further said that all Ministers, their assistant Ministers and the PSs should familiarise with the Public offices Ethic Act and the Anti-corruption Economic Crimes Act, to give better services to the Public. In 2003 four commissions of inquiries were instituted to investigate corruption and land grabbing in Kenya. In 2005 the commissions handed their findings to President Kibaki. It is believed that the reports from those commissions contains names of Kenyans who have already robbed Kenyans a lot of money. The reports also contain names of Kenyans who stole large acreage of land which belonged to the Kenyan people. In the past, I have written to the Kenya National Commissiom on Human Rights, the Transparency International , Kenya Chapter, the Law society of Kenya and to many other organizations in not only Kenya, but in the entire world, trying to plead for pressure to the Kenya Government to release the reports. Although I have not attracted any attention in my plea, I intend to continue with these pressures until the reports are released, because I believe they are Public property. I also believe that once the names of the looters of Public funds, most of who are currently serving the Government of today, are released, Kenyans will for the first time in many years, have a clean Cabinet. The entire Human rights fraternity in Kenya and outside Kenya, should reason well with the Kenyan people. The UNO and AU should also reason with Kenyans. Denying Kenyans the right to know the reports of the commissions of inquiries on corruption and land grabbing, is not only an abuse of human rights but also an insult to the crambling democracy in Kenya. The good sweet words of President Kibaki at the Induction programme, should be supported by his subsequent release of the reports. It is by doing so, that he will convince Kenyans and the friends of Kenya, that he is sincere when he directs that those mentioned adversely in regard to corruption or other unethical conduct, would be expected to step aside. Isaac Newton Kinity PO BOX 4365 Hamden, CT 06514 Tel: 1 203 675 9354
Well now, As suspected there are forces at hand to make this commission as powerless as possible. Kenyan Politics are corrupt by large and will never come clean unless there is a strong opinion against these manipulations from the leadership, current as well as former. Kenya can never be a serious part of the international community unless these matters are addressed properly. Some of the leadership seems to think that just because there is corrupt leadership elsewhere in the world it’s alright for them to skim the cream. There is absolutely no commitment to the people of Kenya, just empty rhetoric. The election was full of it. It almost seems like some politicians’ doesn’t give a crap about the future of Kenya and its people, just as long as they and their buddies are doing well. The people that are powerless today just might be a power to recon with in the future. Hopefully this commission will have the power and means to clean up most of the injustices and take some corruption cases to court and get a conviction that will prevent future scams. Transparency should be the key issue in state affairs. Any Kenyan should be able to scrutinize the public affairs in government, where money comes from and where the money goes to. /Z
n the Kenya Standard newspaper of the May 12th. 2008, certain quotes raises many questions. While opening the Induction programme, President Kibaki called for integrity, saying those who shall be implicated in corruption must step aside. “ you will be expected to treat Kenyans equally and to ensure that corruption and misuse of public resources does not take place under your watch. In this regard you would also be expected to step aside to allow for investigation, should your name be mentioned adversely with regard to corrupt or other unethical conduct”, President Kibaki said. According to the newspaper the President further said that all Ministers, their assistant Ministers and the PSs should familiarise with the Public offices Ethic Act and the Anti-corruption Economic Crimes Act, to give better services to the Public. In 2003 four commissions of inquiries were instituted to investigate corruption and land grabbing in Kenya. In 2005 the commissions handed their findings to President Kibaki. It is believed that the reports from those commissions contains names of Kenyans who have already robbed Kenyans a lot of money. The reports also contain names of Kenyans who stole large acreage of land which belonged to the Kenyan people. In the past, I have written to the Kenya National Commissiom for Human Rights, the Transparency International , Kenya Chapter, the Law society of Kenya and to many other organizations in not only Kenya, but in the entire world, trying to plead for pressure to the Kenya Government to release of the reports. Although I have not attracted any attention in my plea, I intend to continue with these pressures until the reports are released, because I believe they are Public property. I also believe that once the names of the looters of Public funds, most of who are currently serving the Government of today, are released, Kenyans will for the first time in many years, have a clean Cabinet. The entire Human rights fraternity in Kenya and outside Kenya, should reason well with the Kenyan people. The UNO and AU should also reason with Kenyans. Denying Kenyans the right to know the reports of the commissions of inquiries on corruption and land grabbing, is not only an abuse of human rights but also an insult to the crambling democracy in Kenya. The good sweet words of President Kibaki at the Induction programme, should be supported by his subsequent release of the reports. It is by doing so, that he will convince Kenyans and the friends of Kenya, that he is sincere when he directs that those mentioned adversely in regard to corruption or other unethical conduct, would be expected to step aside. Isaac Newton Kinity PO BOX 4365 Hamden, CT 06514 Tel: 1 203 675 9354