Analysis: Truth and consequences in Kenya

Photo: IRIN
Never again? Many fear Kenya's truth commission is ineffective (file photo)
NAIROBI, 23 May 2011 (IRIN) - Almost three years after it was created as part of efforts to avert the kind of violence that rocked Kenya after elections in 2007, a landmark truth commission has only recently got off the ground. But some activists fear it is a paper tiger.

The Truth, Justice and Reconciliation Commission (TJRC) was created by an act of parliament in October 2008, months after a disputed presidential election sparked violence that led to the deaths of more than 1,500 people and the forced the displacement of some 600,000. (The International Criminal Court’s prosecutor has accused six prominent Kenyans of crimes against humanity as a result.)

The TJRC was heralded as a key element of mediation efforts between the camps of President Mwai Kibaki and his election rival Raila Odinga, now the prime minister.

Mindful of the deep roots of the 2008 violence, the TJRC’s architects gave it a mandate to investigate human rights violations committed by the state, groups or individuals between 12 December 1963 - when Kenya gained independence from Britain - and 28 February 2008, the day Kibaki and Odinga signed a power-sharing deal.

From the start, the body was mired in controversy. Its urbane chairman, career diplomat Bethuel Kiplagat, was accused of involvement in some of the very crimes falling under the commission’s purview. Kiplagat has stepped aside pending a separate investigation into these allegations, a probe he has taken legal action to halt.

More fundamentally, the TJRC came under fire because of “inherent flaws” in its mandate - which allows for amnesty recommendations in some cases - and concerns that it would fail to hear from perpetrators as well as victims, thereby providing no explanation as to how crimes were permitted to occur.

These concerns led Nobel-Prize-winning author Wangari Maathai to describe in August 2009 the commission as one designed “to facilitate impunity, hoodwink and massage the victims and yet again, sweep the crimes under the carpet”.

In January 2011, the Kenya Transitional Justice Network, a coalition of civil society organizations, called for the TJRC to be disbanded, citing “the credibility crisis surrounding” the Kiplagat controversy, the body’s “weak legal framework” and “weak provisions” both for reparations and witness protection.

But the commission has continued its work. In April, the first round of hearings was held in the north of Kenya, probing decades-old atrocities such as the notorious Wagalla massacre of 1984. In February that year, security forces launched a “disarmament” campaign in which they corralled male members of the Degodia clan on to the Wagalla airstrip in Wajir District. Although the government’s official death toll is 57, many estimates run well into the thousands.

Hearings subsequently continued in Nairobi, where officials who worked in the north were given a chance to testify. One commissioner, Ronald Slye, who came close to resigning over the Kiplagat affair, told IRIN the hearings could help restore the commission’s credibility in the eyes of civil society while bolstering interest on the part of survivors. “The hope is that as we prove ourselves, which seems to be happening, people will start to come around a bit,” he said.

Photo: Julius Mwelu/IRIN
Kenyan security forces stand accused of killings hundreds in 2008 (file photo)
“Warming” to TJRC

Some activists do appear to have softened their stance. Njonjo Mue, head of the International Center for Transitional Justice in Kenya, which has refused to engage with the commission, recently said the latest hearings had been largely positive.

“It’s encouraging that some of the victims have warmed up to the commission and have come to tell their stories, because that is an important part of any truth commission’s work,” Mue said. “To that extent I would say it’s a significant milestone.”

But he also said it was far from clear that other key objectives of the commission would be met, among them the implementation of recommendations expected to be included in its final report. Though the recommendations - which can cover reparations and prosecutions in addition to amnesty - will be legally binding, Slye acknowledged that this stipulation “is only as powerful as law enforcement”.

Mue also said the commission might be unable to obtain full testimony from alleged perpetrators, thereby failing to shed light on how crimes were allowed to occur. The Nairobi hearings indicated this prediction could prove true, at least in some cases. When a former minister in charge of internal security appeared before the commission on 17 May, he denied all knowledge of an incident under investigation - the 1980 killing, allegedly by security forces, of civilians in the Garissa village of Bulla Kartasi.

Mue said: “One of the expectations of any truth commission is to enable the country to engage in a national conversation that leads to healing and reconciliation. We saw this at a very high-profile level in South Africa, and we expected that of Kenya as well. A lot of victims we spoke to in preparation for the truth commission were expecting to participate in a process that leads to just such a conversation between victims and perpetrators, and that helps the nation reflect and come to terms with what went wrong so that it could not be repeated again.

“When we look at what’s happening with public hearings, we do not see that aspect being played out... as we expected it would be [when] the commission was being established. That is in my view the biggest shortfall.”

Muthoni Wanyeki, executive director of the Kenya Human Rights Commission, an NGO, said that without candid testimony from perpetrators, the report would be “irrelevant”.

“The only possible use it could have is another official document saying this happened,” she said. “In terms of revealing truth or providing justice, I think it’s going to be a huge disappointment, frankly.”

Kenya’s archives are already littered with weighty and often well-intentioned reports into a variety of abuses, from land-grabs to forced displacement and killings. Many have never been publicly released. None has led to successful high-level prosecutions.

Lessons for Cote d'Ivoire

As Cote d’Ivoire begins to set up its own Truth and Reconciliation Commission to explore the background behind the country’s political and ethnic violence, IRIN sought out views on what lessons could be learnt from Kenya’s experience.
A summary:

DO cut down on vested interests from the government, which can make it difficult to conduct thorough investigations. Make the commission as independent as possible.
DO ensure the commission enjoys popular credibility from the start, or else resources better spent on getting perpetrators to testify will have to be diverted to persuade survivors to attend.
DO try to prompt a national conversation through the commission, one that leads to healing and reconciliation; DO ensure its framework and duties are carried out through an open and consultative process.

DON'T allow the commission to replace traditional criminal proceedings, either national or international.
DON'T rush in before assessing whether i) a truth commission is appropriate at this stage; ii) the public is ready for it; and iii) there is genuine political will to act on recommendations.
DON'T allow statement-takers to begin their work without providing sufficient training.

Sources: Human Rights Watch, International Commission of Jurists, International Centre for Transitional Justice in Kenya, Kenya National Commission on Human Rights

Nairobi hearings

The Nairobi hearings also highlighted some of the difficulties in even bringing officials before the commission. Among those summoned were 13 officials, including Kiplagat, believed to have attended a security meeting just before the Wagalla massacre.

Some ignored the summons. A lawyer representing all 13 won a two-week reprieve so that relevant documents could be located. 

This decision did not sit well with Muhamed Mahamoud, a 71-year-old resident of Wajir, who says he endured torture at the Wagalla airstrip and lost two brothers in the massacre.

“I have no hope for the commission as long as they allow this type of postponement to happen,” he said. “I have a feeling that the victims of Wagalla may never see justice as long as this continues.”

Slye said the delay was only temporary, adding that testimony obtained from the officials during the rescheduled hearings - provided they went ahead as planned - could dispel criticism that only survivors were being heard.

Unlike Mahamoud, other victims who attended the hearings this week said they had faith in the commission to execute its mandate, especially now that Kiplagat was no longer chairman. But they, too, said they questioned the government’s willingness to abide by its recommendations.

“I had doubted the commission earlier when Bethuel Kiplagat was the leader, because when the hyena is the judge, the goat will never have justice,” said Musa Dimbil, an elected councilor in Wajir County who was nine years old at the time of the massacre. (Kiplagat has denied any involvement.)

“Since he is now out, we have hope, although we fear that the recommendations of the commission may not be implemented by the current government due to political manipulation,” Dimbil said.


Abdi Hussein, also a councillor in Wajir County, said he hoped the commission’s report would lead to prosecutions. “As of now I am so relieved because there is a new chairperson who is determined to bring the perpetrators of the Wagalla massacre to book,” he said. “The problem will be with parliament - to make sure the findings and recommendations are implemented to the letter.”

Slye noted that the commission would have little control over this process. “Where the commission is rightly judged is how reasoned and well thought-out the recommendations are, and what sort of political work we do to try to create a political constituency that will put pressure on the government to implement them,” he said.

With about half the commission’s two-year mandate lost to the Kiplagat saga, there is talk of a possible extension. On 17 May, Justice Minister Mutula Kilonzo said the government would approve an extension in order to “ensure all regions are covered and a final report handed over to the government”.


Theme (s): Conflict, Early Warning, Governance, Human Rights,

[This report does not necessarily reflect the views of the United Nations]

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