NAME OF MECHANISM

Truth, Justice and Reconciliation Commission

PERIOD OF OPERATION

March 2009 – present. The commission began its work in January 2010 and was slated to submit a final report in November 2011. It has requested a six-month extension.

MANDATE AND OPERATIONS

Mandate: The Truth, Justice and Reconciliation Commission (TJRC) was established by the Truth, Justice and Reconciliation Act of 2008 to investigate historical injustices, human rights violations (politically motivated violence, assassinations, displacements, settlements, evictions, etc.) and major economic crimes (grand corruption, historical land injustices, illegal/irregular acquisition of land) committed by the state, groups or individuals between 12 December 1963 and 28 February 2008.

The final report is to state the commission’s findings and recommendations, which are to be submitted to the president and made public within 14 days. No blanket amnesty is to be provided for past crimes, but individual amnesties may be recommended. The TJRC is not mandated to recommend prosecutions. Victims could apply to the commission for reparations.

Staff: Six Kenyan commissioners and three international commissioners, five men and four women, nominated by the Panel of African Eminent Personalities: Mr. Bethuel Kiplagat (chair, resigned), Mrs. Betty Murungy (vice chair, resigned), Ms. Tecla Namachanja Wanjala (acting chair), Mr. Tom Ojienda, Ms. Margaret Wambui Shava, Major Gen. (Rtd.) Ahmed Sheikh Farah, Ms. Gertrude Chawatama (Zambia), Mr. Berhanu Dinka (Ethiopia) and Mr. Ronald Slye (United States). Ms. Patricia Nyaundi is the commission’s secretary and CEO.

Budget: About US$12.8 million, with an additional US$5.3 million promised by the Kenyan government for further public hearings [Daily Nation | 3 Mar 2011].

RESOURCES

Truth, Justice and Reconciliation Act [2008]
Report of the Commission of Inquiry into Post-Election Violence (Waki Report) [2008]
Kenyan National Dialogue and Reconciliation Findings [2009]
TJRC Progress Report to the National Assembly [2011]

RESULTS

The TJRC has been plagued by challenges. Soon after the commissioners were announced on 22 July 2009, civil society organisations challenged the appointment of Bethuel Kiplagat, alleging that he was involved in the irregular acquisition of public property, the Wagalla Massacre and the murder of Minister of Foreign Affairs Robert Ouko [KHRC | 11 Oct 2010]. By April 2010, the other commissioners, along with a number of world leaders and civil society organisations, were demanding Kiplagat’s immediate resignation [Daily Nation | 13 Apr 2010]. In June 2010, a team of parliamentarians in the House Committee on Justice and Legal Affairs started looking into ways to disband the TJRC [Daily Nation | 21 Jun 2010].

In November 2010, despite his initial refusal to resign, Kiplagat announced that he was stepping down. Kiplagat resigned after the appointment of a tribunal to examine his conduct, stating that he would be vindicated by the body [BBC | 2 Nov 2010]. Kiplagat has since filed a suit against the tribunal, arguing that it is only allowed to investigate his conduct as TJRC chairman, not his past [Daily Nation | 27 Apr 2011]. The tribunal has been put on hold pending the suit’s resolution.

Despite these setbacks, the TJRC has continued its investigations and public hearings. In March 2011, the commission noted that issues of land ownership were emerging as one of the main themes in public hearings. Of the 29,020 people who had testified by that time, 35 percent listed unfair land distribution, loss of land and lack of land tenure rights as their main concern. In addition, 34 percent cited extrajudicial killings as their main concern [Daily Nation | 20 Mar 2011].

Also in March 2011, former TJRC Deputy Chairperson Betty Murungi publicly appealed for local trials of about 6,000 Kenyans implicated in sexual violence in 2007–2008, citing a need for local solutions to the country’s problems. Investigations into post-election sexual violence began in 2009, when former Police Chief Mohammed Hussein Ali established a taskforce to address the issue [Daily Nation | 30 Mar 2011].

From April through June 2011, the TJRC held hearings and gathered evidence in relation to the controversial 1984 Wagalla Massacre in the northeast Kenya. According to survivors, during an operation aimed at disarming ethnic Somali clans, government forces committed massive human rights violations, including torture, and killed up to 5,000 people. The government is said to have downplayed the operation, claiming that 57 people were killed [BBC| 18 Apr 2011]. Some of the key witnesses, including former TJRC Chairman Kiplagat, former Chief of General Staff Joseph Kibwana, former Cabinet Minister David Mwiraria and former Provincial Commissioners Joseph Kaguthi and Benson Kaaria, initially failed to appear in front of the TJRC after being accused of involvement in the massacre [Daily Nation | 20 Apr 2011].

After testimony from several key government figures, including those who initially did not appear, the former finance minister and Home Affairs permanent secretary, David Mwiraria, apologised to the victims of the Wagella Massacre, calling it “a tragedy that should have not been allowed to happen” [Daily Nation | 7 Jun 2011]. The victims have called on the government to pay reparations and provide more assistance to the underdeveloped northeast [Daily Nation | 18 Apr 2011].

BACKGROUND

Kenyans began motivating for the establishment of a truth commission in 2002, when it was felt that greater space for democratic engagement had opened. This led to the creation of Kenya Task Force on the Establishment of a Truth, Justice and Reconciliation Commission, which noted in its final report of August 2003 that over 90 percent of Kenyans wanted an effective truth commission established. However, little was done regarding its recommendations.

Following Kenya’s December 2007 elections, supporters of opposition leader Raila Odinga clashed with supporters of incumbent Mwai Kibaki when it was announced that Kibaki had won the presidency. In January 2008, negotiations brokered by the African Union (AU), through the Panel of Eminent African Personalities, which was headed by former UN Secretary-General Kofi Annan, resulted in a coalition government being established. A peace agreement was signed that included a roadmap for addressing the political and economic challenges in Kenya and provided for the establishment of commissions of inquiry into historical injustices and human rights violations.

SOURCES

[BBC | 2 Nov 2010]
[BBC | 18 Apr 2011]
[Daily Nation | 13 Apr 2010]
[Daily Nation | 21 Jun 2010]
[Daily Nation | 3 Mar 2011]
[Daily Nation | 20 Mar 2011]
[Daily Nation | 18 Apr 2011]
[Daily Nation | 20 Apr 2011] 
[Daily Nation | 7 Jun 2011] 
[Kenya Human Rights Commission | 11 Oct 2010]