23 October 2008

Kenya: New Law to Block Amnesty

Nairobi — There will be no amnesty for people found guilty of abusing human rights if President Kibaki signs into law a Bill Parliament passed on Thursday.

MPs sat in the committee stage, scrutinised, amended and passed the Truth, Justice and Reconciliation Commission Bill, thereby starting the journey to end the culture of impunity long enjoyed by criminals regardless of their position in society.

If the Head of State signs the Bill into law, a nine-member Truth, Justice and Reconciliation Commission will be established.

It will have powers to investigate and recommend appropriate actions on various human rights abuses committed between December 12, 1963, and February 28, 2008, when President Kibaki and Prime Minister Raila Odinga signed the peace and power-sharing deal.


The truth and reconciliation commission will then pass its recommendations to the Attorney General to either prosecute or agree with it in handing amnesty to those found to have committed lesser crimes and confessed. It is the AG who, according to the Constitution, has unfettered prosecutorial powers.

Those who commit gross human rights abuses relating to abductions, disappearances, detentions, torture, sexual violations, murder and extrajudicial killings will not be granted amnesty, the Bill says.

If the Bill matures into law, the truth commission will not grant amnesty until it has considered any reasonable objection from a victim.

Those found to have committed economic crimes will not qualify for amnesty and not allowed to apply for amnesty before making restitution.

And to avoid the scenario that was the Goldenberg Commission of Inquiry where lawyers appeared on behalf of all the main suspects, the truth commission Bill compels those whose conduct is the subject of the commission's investigations to appear in person.

The Bill traces its origins to the peace and power-sharing talks of the National Dialogue and Reconciliation Committee formed at the height of political unrest following the disputed presidential results of the December 27 General Election.

Chaired by former United Nations secretary-general Kofi Annan, the negotiators -- comprising ministers Karua, Mutula Kilonzo, Sam Ongeri and Moses Wetang'ula for the Party of National Unity and ministers William Ruto, Sally Kosgei, Musalia Mudavadi and James Orengo for the Orange Democratic Movement -- proposed the formation of the commission to deal with historical injustices and violation of human rights.

The Bill was one of the pillars of the peace and power-sharing deal. Others were constitutional review, commissions to investigate the presidential results, and Agenda Four on long term issues -- regional imbalance, land reforms and unemployment.

It notes that the political impasse exposed deep-seated and long-standing divisions among Kenyan communities, adding that it was necessary to erase those obnoxious relations through constitutional, legal and political measures.

Was defeated

Mandera Central MP Abdikadir Mohammed, who chairs the departmental committee on Administration of Justice and Legal Affairs led MPs in considering the report of his team.

If enacted, the proposed six of the commissioners will be Kenyans picked by a selection panel made up of nominees from religious organisations, trade unions and professional bodies.

The selecting organisations will send 15 names for vetting by Parliament which will then pick six for appointment by the President. African Union's Panel of Eminent African Personalities will pick the remaining three commissioners.

The chairperson of the commission will be appointed by the President while the vice-chairperson will be elected by the commissioners from among themselves.

To remove a Kenyan commissioner, the President will appoint a tribunal while non-Kenyans found to have failed in their duties will be replaced by the Panel of Eminent African Personalities.

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