Case Studies

KENYA

Historical Background

From 2007 to early 2008, the people of Kenya endured a period of severe post-election violence. It stemmed from ongoing conflicts throughout the nation, originating as far back as Kenya’s independence (December 12, 1963).

Stakes were high when the National Dialogue peace talks finally began at the end of January 2008. Frequent outbreaks of violence threatened to escalate into civil war.

An Annotated Agenda and Timetable (the Agenda) was signed on February 1, 2008, outlining steps for resolving the political crisis and addressing the root causes of the violent conflict. The framework for achieving peace involved economic, political, and civil rights. The priority of the National Dialogue was to achieve immediate peace, to be followed by comprehensive reform.

On February 14, 2008, parties to the National Dialogue committed to establish a Truth, Justice and Reconciliation Commission (TJRC) as a mechanism of reform and transition. The relevant agreement was titled Agenda Item Three: How to Resolve the Political Crisis.

It was decided that the Truth, Justice and Reconciliation Commission would be created by an act of parliament and the act would serve as the commission’s official mandate. Parties to the peace talks settled on a timeline of two years and a maximum of fourteen days between the presentation of the final report to the president and its publication at large.

 

Case Studies

KENYA

Historical Background

 

The Truth, Justice and Reconciliation Act, the commission’s statutory legislative mandate, became official in 2008 with the passage of a parliamentary act. The act created a comprehensive legislative framework for the commission and implemented the provisions of agreements signed during the National Dialogue.

In August 2009, human rights defenders and victims’ groups filed a lawsuit before the Kenyan High Court, seeking the dissolution of the commission. The Kenya Transitional Justice Network, a network of civil society organizations, announced its disengagement from the commission and explicitly cited allegations against Amb. Bethuel Kiplagat, chairperson of the TJRC, as a major reason.

In February 2010 Archbishop Desmond Tutu led a group of former truth commission members to call on Kiplagat to resign. Vice Chairperson Murungi, prior to her filing her own resignation, publicly asked Kiplagat to resign. All of these appeals were refused. Kiplagat remained in office.

In April 2010, eight commissioners filed a petition to the chief justice of the High Court and requested the appointment of a tribunal of inquiry into whether Kiplagat should be removed from his position. This tribunal was not established until late October 2010.

Following this, Kiplagat announced that he was stepping back from duties on the commission and entered his own legal proceedings to challenge the jurisdiction of the tribunal. The tribunal’s proceedings were suspended pending a decision on the question of its jurisdiction. During this time, the tribunal’s six-month mandate expired; it ceased its activities without reaching a formal decision. The chief justice refused an extension.

In April 2012, Kiplagat reoccupied his position as chair.

 

The Truth Commission

Kenya’s Truth, Justice and Reconciliation Commission

HYBRID COMMISSION COMPOSED OF:

6 NATIONALS AND 3 INTERNATIONALS

OPERATIONS LASTED:

ALMOST 4 YEARS

STATEMENTS RECORDED:

42,465

MEMORANDA RECEIVED:

1,529

HEARINGS HELD IN:

ALL REGIONS

TESTIMONY GIVEN BY:

MORE THAN 680 INDIVIDUALS

SPECIAL HEARINGS HELD FOR:

WOMEN

TJRC Mandate

The TJRC’s mandate set forth the three components of the commission:

1. Truth Seeking: The commission was to establish a complete and accurate historical record of rights violations and abuses inflicted between 1963 and 2008. Inquiries were to address the causes of these violations, including historical contexts, as well as the perspectives of victims and perpetrators. The intended result was to create a platform of truth telling for the public and to ultimately deliver an accessible report.

2. Reconciliation: The commission was to offer victims a forum “to be heard and restore their dignity” and perpetrators a forum “to confess their actions as a way of bringing reconciliation.” The commission was also to make recommendations on reconciliatory measures to Kenyan authorities as well as facilitating grants of amnesty to perpetrators who offered full disclosure.

3. Justice: Aspects of the commission’s justice component were expressed only in relation to its authority to make recommendations. The TJRC was to determine “ways and means of redress for victims of gross human rights violations” and to recommend parameters for the “prosecution of perpetrators of gross human rights violations."

Commissioner Appointments

The TJRC would consist of nine commissioners: three non-citizens selected by the Panel of Eminent African Personalities and six Kenyans selected according to a four-step process:

Selection Process for Kenya's Truth, Justice and Reconciliation Commission

The president appointed Kiplagat as chair. Before long, Kiplagat’s conflicts of interest came under public fire. The charges leveled against him were serious, including possible involvement in the murder of Dr. Robert Ouko, the planning of the Wagalla Massacre in 1984, and illegal or irregular land transactions.

 

Challenges

 

Broad Mandate

The Truth, Justice and Reconciliation Act presented challenges that would have been significant for any investigative body. The commission was given an extraordinarily broad mandate, covering 45 years and a diverse catalogue of violations, including crimes against humanity, genocide, enforced disappearances, gross human rights violations, and even illegal land transactions.

Beyond violations of humanitarian law, the commission was also to address major economic crimes, in particular “grand corruption, historical land injustices or irregular acquisition of land” per the March 4 agreement. The Truth, Justice and Reconciliation Act offered definitions for most of the human rights violations incorporated in the commission’s mandate, but it did not define terminology relating to economic crimes.

Controversy

“The controversy diverted and distracted the attention and energy of the Commission from executing its core mandate.”—  Truth, Justice and Reconciliation Commission Final Report

The Truth, Justice and Reconciliation Commission was engulfed in controversy and lawsuits almost from the start. Its most public difficulties centered on the credibility and suitability of its chairperson, Kiplagat.

Some of the commission’s civic education and outreach activities had to be shortened or discontinued in the face of protests against Kiplagat. Victims and their families were reluctant to be associated with the commission. Its legitimacy and capacity to gain support eroded in wake of this controversy.

 

Challenges

 

Financial Hardship

Neither parliament-allocated funds nor grants, gifts, or donations proved sufficient to meet the commission’s operational needs. Because of lack of funds, the commission operated without a secretary or secretariat during its first fiscal year. It was administered instead by Kenya’s Ministry of Justice until July 2010. In its second fiscal year, the commission again received only half of its proposed budget. Staff hiring was again postponed and essential mandate-related operations were compromised. The financial situation was so dire that at times the commission had to seek loans from the commissioners, themselves.

Financial shortfalls compromised the commission’s independence and resulted in multiple operational delays. In fact, the need to find independent sources of financing in order to preserve the credibility and efficacy of the commission was discussed during the National Dialogue. However, parties to the talks could not agree on how to engineer a commission with such financing.

Lack of Political Will

In its final report, the Truth, Justice and Reconciliation Commission found the level of political will offered in its support to be lacking. The report cites corruption, accumulation of wealth, and desire for power as leading motivations for political actors to shy away from reforms.

According to the report, noncooperation from the government negatively impacted both the commission’s “operations” and the “public perception of its work.”

The report has been met with strong political resistance and legal challenges from sectors incensed by the commission’s implication of past political leaders in economic crimes. The Parliament of Kenya has debated the ultimate meaning of its obligation to “consider” the report and the institutions that should implement its recommendations. Kenyan civil society and the international community will have an important role to play in monitoring and seeing recommendations through to implementation.

Successes

 

In order to meet the high expectations of its mandate within a limited window of time, the commission narrowed its scope of inquiries. Violations were prioritized across seven specific contexts:

• Shifta War (1965-1967)
• Security operations in North Eastern, Upper Eastern, and North Rift (1963-2008)
• Attempted coup (1982)
• Crackdown on multiparty and pro-democracy activists (1986-1991)
• Ethnic and politically instigated clashes (1991/1992-1997)
• Activities of and crackdown on militia groups (2006-2007)
• Post-election violence (2007-2009)

Thus, despite many obstacles and some shortcomings, the commission was able to produce and present a final report that significantly responds to key elements of its mandate in terms of findings and recommendations. Significantly, the report includes a detailed self-critical assessment of the commission’s tenure.

Lesssons Learned

 

Strong Foundational Accord

The Accord establishing the Truth, Justice and Reconciliation Commission helped to provide a binding foundation and moral vision, ensuring that parties to peace talks honored their commitment to establish the commission, fulfilling a long-standing goal of many Kenyans.

Unrealistic Mandate

The flaws of the commission manifested in highly atypical forms. The extraordinary and paradoxical element of Kenya’s commission is that participants created a deeply challenged institution while ostensibly receiving and accepting the best possible practices and principles identified internationally.

The mandate introduced by Parliament was not anemic; rather, it proved highly intricate and consequently unrealistic. The commission’s mandate might have supported an effective commission were it not for compounding factors of conflicting political wills, politically elite self-interests, and fear of prosecution on the part of some in power. Many of the individuals in power had some role in events under investigation by the commission.

Selection of Commissioners

On paper, the Truth, Justice and Reconciliation Act appeared to provide a sound selection process and procedure for addressing allegations of human rights abuses against commissioners. However, the act offered no opportunity for public evaluation of shortlisted candidates, which might have prevented Kiplagat’s problematic appointment. Similarly, wider provisions for the dismissal of a commissioner, for example, on the grounds of material nondisclosure, might have rendered the drawn-out process of jurisdictional challenges and tribunals unnecessary.