Institute for Security Studies (Tshwane/Pretoria)

Kenya: Can Kenya's Truth, Justice and Reconciliation Commission Deliver?

analysis

After several false starts, Kenya's Truth, Justice and Reconciliation Commission (TJRC) has finally promised to release its findings on 3 May 2013.

Established by an Act of Parliament in 2008 (although it only came into being in 2009) to investigate gross human rights violations and other historical injustices in Kenya from 12 December 1963 to 28 February 2008, the TJRC was initially crippled by internal wrangles and litigation against its chairperson, Ambassador Bethuel Kiplagat.

Local groups accused Kiplagat of aiding and abetting the very human rights abuses that the TJRC sought to investigate. Four years later, the TJRC is struggling to salvage its credibility by promising a report that will no doubt struggle to satisfy Kenyans' desire for the truth.

Like most African countries, Kenya has since its independence witnessed various gross human rights violations and economic crimes. The TJRC's mandate was to establish an accurate and complete historical record of these human rights abuses and to ensure justice (criminal, restorative and social) while promoting peace and national unity.

Its promise of a final report is, however, animating diverse reactions ranging from cynicism to guarded optimism. The cynics dismiss the TJRC as a lost cause that is 'attempting to lock the stable after the horse has bolted' while the optimists think it may just surprise Kenyans if it provides a comprehensive account of the facts, causes and alleged perpetrators of past human rights abuses.

Without access to the report, it may be imprudent to second-guess its contents. It is however reasonable to extrapolate that the TJRC will struggle to realise its mandate because of the organisational and operational circumstances it faced. The TJRC failed to galvanise Kenyans to engage in a national debate about their history.

There were a few discussions in the media following some of the hearings, but overall these discussions remained subdued compared to extraneous matters such as the litigation against the TJRC Chair.

The initial wrangles certainly undermined the body's credibility, but of more significance is that the TJRC failed to actively marshal popular support through working with the media and key civil society organisations (CSOs). Transitional justice requires the active participation of the media and civil society, which help to promote a sense of public ownership of the process.

Indeed, it is civil society that is expected to leverage the government to implement the TJRC's recommendations. However good the TJRC report might be, the limited civil society engagement could mean that Kenyans risk experiencing the same frustration as South Africans did when the non-implementation of several recommendations by the Truth and Reconciliation Commission (TRC) led to a negative perception of the whole process.

Operationally, Kenya's TJRC assumed a broad mandate that included, among others, investigating gross human rights violations and economic crimes. This broad mandate meant that the TJRC, inevitably, had to face logistical and operational challenges. In particular, investigating the complex matter of economic crimes created serious methodological and timing problems.

The typical approach of taking individual statements and holding public hearings could not have been particularly effective in dealing with economic crimes that, for instance, involved the secret hoarding of money in foreign bank accounts.

Economic crimes call for an entirely different pool of investigators with skills to look into the shady world of economic dealings, often with international dimensions. Kenya's TJRC seems to have realised the intricate nature of this aspect of its mandate and deliberately given key economic crimes a wide berth.

One important component that is likely to undermine Kenya's TJRC process is the question of political and moral leadership. In South Africa, the TRC managed to rally the country mainly because of the moral leadership of Nelson Mandela and Archbishop Desmond Tutu, both of whom preached forgiveness and reconciliation (regardless of its contested meanings).

In Kenya, there has been no commitment by the government or the political elite to promote healing and reconciliation. As observed earlier, the TJRC's standing and integrity have suffered, which makes it difficult to convince Kenyans that it has the will to address the legacy of past human rights violations.

At a basic level, Kenya's TJRC - like most similar commissions before it - will inevitably disappoint people because the words 'truth', 'justice' and 'reconciliation' in its title refer to contested matters that cannot satisfy the expectations of all. Indeed, some of the TJRC's objectives such as national unity, reconciliation and healing require fundamental policy initiatives that are outside its mandate.

On an optimistic note, if the TJRC manages, in the words of Michael Ignatief, 'to narrow the range of permissible lies' about Kenya's past by bringing forth unique insights into historical injustices and giving a clear and comprehensive account of key human rights violations, it may just make Kenyans reassess their pessimistic assumptions.

Those in Kenya whose relatives have disappeared or were assassinated would certainly welcome information about what happened to their loved ones. In South Africa, one of the achievements of the TRC was the way it roused the country with regard to past human rights violations, to the extent that nobody now denies their existence.

Broadly, Kenya's historical injustices are embedded in skewed socio-economic and political structures. Efforts to promote national unity must focus on addressing these underlying problems in order to promote a sense of fairness and inclusiveness in terms of governance and access to national resources. It is therefore important to realise that a short-term intervention such as the TJRC is limited in effecting broad structural changes in society and remains an insufficient tool to heal a country.

Emmanuel Kisiangani, Senior Researcher, Conflict Prevention and Risk Analysis Division, ISS Nairobi

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