David Mugonyi
13 July 2008
analysis
Nairobi — Kenya faces a crucial test to find the truth and reconcile compatriots torn apart following the post-election violence. But even before that gets underway, fault lines are evident between the two main parties in last year's General Election.
The suspicious fight over claims of corruption in the cabinet between PNU and ODM leaders has injured the grand coalition and respective party supporters.
This compounded with a flawed law on the Truth, Justice and Reconciliation Commission, scholars, human rights officers and lawyers led by Prof Makau Mutua argue is likely to undermine the commission's efforts to find the truth and reconcile communities.
Interviews with experts on human rights issues reveal the timing of such a commission was not right, considering the political climate in the country.
Additionally, the emotive issue of amnesty for suspected perpetrators of the violence and also the divided partners in the coalition government, is likely to negatively impact the commission. Already, the government's effort to resettle victims of the violence has been dogged by problems of the country's fractious ethnic arrangement.
And renewed animosity between supporters of ODM and PNU at the ongoing hearings by the Independent Review Commission on post election violence led by retired South African judge Justice Johann Kriegler appears to be a precursor to what the truth commission could face, says Ms Betty Murungi, a human rights activist.
Lack of implementation
Although most Truth and Reconciliation Commission's works have been praised, experiences from Sierra Leone, South Africa, Ghana, Democratic Republic of Congo and Liberia show that they have not been as successful as popularly thought.
The main problems in these countries, and which are likely to affect Kenya's process, include lack of implementation of the recommendations especially reparations to victims, which leaves the notion that they are tools to whitewash and clear perpetrators.
According to Law Society of Kenya chairman Okong'o Omogeni, Prof Mutua and Ms Murungi, Kenya is likely to falter and repeat these mistakes. The argument is that its proposed law on the truth commission is inadequate.
Their views are also shared by Central Imenti MP Gitobu Imanyara, former LSK chairman Ahmednassir Abdullahi and former chairman of the Parliamentary committee on the Administration of Justice and Legal Affairs Paul Muite.
Outgoing Kenya National Commission on Human Rights chairman Maina Kiai and his successor Florence Jaoko also hold the same views.
They argue that if the truth commission law is not amended, the country would be accepting a stage-managed process designed to sanitise criminals. Ms Murungi says: "The truth commissions should be victim centred. The victims should not only be compensated but supported as well."
Dr Kiai, Mr Omogeni and Mr Muite argue that the thrust of the truth commission law as currently drawn tends to lean on the issue of amnesty of the perpetrators ignoring the rights of victims.
According to Mr Muite: "The design of our law and motivation is amnesty while rights and compensation of victims is being given scant attention."
Seven pages
He points out that the Bill devotes seven pages to the issue of amnesty and a single page to the issues of reparation and rehabilitation. Prof Mutua says the focus on post-election violence will preoccupy the commission with emotive issues clouding other major crimes.
South Africa's truth commission is deemed to have failed because it did not fully compensate victims as proposed while in Sierra Leone, although a victim's fund was set up for survivors, women were not compensated.
In Rwanda, (although it was not called a truth commission) it failed because most victims felt perpetrators cheated their way out of jails to do community service. And in South Africa, perpetrators cleverly couched their statements to qualify for reparation and secure amnesty.
Kenya's record of failing to implement recommendations of commissions and task forces, to protect political interests, is likely to affect the work of not only the truth commission but also other bodies set up to investigate post-election violence.
Ms Murungi, Prof Mutua, Dr Kiai, Mr Imanyara and Mr Muite say several reports of commissions that were formed to investigate various crimes in the country are lying unimplemented.
They gave examples of the Akiwumi and Kiliku commissions which investigated land clashes in 1992 and 1997, the Goldenberg Commission of Inquiry and the recent Ndung'u commission on land grabbing.
Above all, failure by the government to form a truth commission as proposed by Prof Mutua's task force in 2003 when the climate was conducive points to lack of political will. The grand coalition government agreed to form a truth commission in line with recommendations by the Kofi Annan-led mediation team.
Mr Omogeni, Mr Muite, Mr Abdullahi and Dr Kiai say only a clear commitment by the government beforehand to implement recommendations and follow-up could salvage hope in the commission.
Similar views have been expressed by Mr George Wachira, a senior researcher and policy advisor who is the immediate former executive director of NPI-Africa, and researcher Prisca Kamungi.
Mr Wachira and Ms Kamungi propose that the truth commission Act should make provisions for an independent follow-up mechanism with a clear mandate to spearhead the implementation of the truth commission's recommendations.
Similar views
Mr Wachira and Ms Kamungi warn: "Kenya has to weigh carefully what the primary purpose of the truth commission is to be. Past truth commissions have been expected to deliver on 'justice' - variously assumed to mean compensation for victims, prosecution of perpetrators, resettlement, land re-allocation, psychological counselling, physical rehabilitation and return of stolen wealth."
The two say that evidence from post- truth commission countries in Africa, and from Kenya, shows expectations of material compensation as the greatest motivation for people's participation.
However, reparation programmes in each of the post-truth commission countries have proceeded with minimum success due to inadequate resources or waning political will after the truth commission.
"In South Africa, the compensation amounts paid are only a fraction of what the truth commission recommended. Due to this failure, the phrase 'a waste of time' has been used repeatedly to appraise the impact of the truth commission in Ghana, Liberia and Sierra Leone, and in South Africa many say that, in retrospect, the truth commission was a hoax, a tool to hoodwink the nation into allowing the beneficiaries of apartheid to keep what they had without organised resistance," they add.
LSK also shares similar views that the truth commission is unlikely to add value to the quest for truth and justice, unless it has the power to enforce the implementation of recommendations of its findings and those of earlier bodies.
And this is why Human Rights Watch Africa director, Georgette Gagnon says the independence of the commission is severely compromised in the current draft because it gives the minister for Justice and Constitutional Affairs the power to scrutinise and approve the commission's expenses, allowances, and budget thereby giving the government control over its activities.
Ms Gagnon and Mr Omogeni argue that failure to give the commission immunity from being sued for its actions as a court could obstruct its work.
The amnesty provisions as proposed, HRW and LSK state, 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.
"If the proposed Truth, Justice and Reconciliation Commission is to achieve its ambitious goals and not simply become another whitewash, the loopholes in its mandate must be closed by parliament," Gagnon adds.
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