Civil society oppose amnesty clause in Bill

By Juma Kwayera

Even before it comes up for debate in Parliament, the envisaged Truth, Justice and Reconciliation Commission Bill has come under sharp criticism. Members of the civil society and human rights organisations are expressing concern that it might come a cropper.

The problem, they say in a dispatch to the Minister for Justice and Constitutional Affairs Martha Karua, stems from "uncritically adopting the South African model" without relating it to Kenya’s unique socio-economic and political circumstances.

"Several of the amnesty provisions from the South African law have been adopted word for word — simply cut and pasted into the Bill. While there are several aspects of the South African experience that are worthy of emulation, we are of the view that the amnesty process was its least successful feature," the organisations say in the report, which was copied to Attorney General Amos Wako on Wednesday.

Responding to the concerns, Assistant Minister for Justice and Constitutional Affairs William Cheptumo concedes that the Bill, which is lined up for the Third Reading in the House, has serious ambiguities that need to be sorted out before it is enacted.

Ambiguous law

"The worst law you can have on earth is an ambiguous law. We are addressing this before it comes up for the third reading. It has to be refined by addressing the glaring flaws," Cheptumo says.

One of the troublesome issues identified, which must be addressed lest it jeopardises the passage of the law by Parliament, is amnesty.

"We are making the law for the country. We are faced with choices between absolute and conditional amnesty and in either case there are bound to be complaints. The driving force of the process is forgiveness, national reconciliation and healing," says the Assistant Minister.

Eventually, he notes, its application will hurt some people, while others will rejoice, "that is the nature of the law". The civil society organisations say in their memo that there was likely to be a miscarriage of justice or failure to get the desired outcomes if the Bill came up for debate in its present form. They want conditional amnesty to be dispensed with, arguing it is fraught with loopholes, which perpetrators of heinous crimes would exploit to escape justice.

"Amnesty will prove to be little more than an insurance policy for the corrupt. Current provisions on reparations will exclude the most marginalised in Kenya’s society from resulting compensation," they say.

Coalescing under the Multi-Sectoral Task Force on Truth, Justice and Reconciliation Commission (MSTF), 48 local and international organisations have proposed an overhaul of the Bill.

In the memorandum to Wako and Karua, they warned: "If the flaws are not addressed it would render key aspects of the TJRC process meaningless, unconstitutional and inconsistent with Kenya’s international law obligations."

There have been doubts about the grand coalition Government’s commitment to address historical injustices and comprehensive constitutional review. The issues have been relegated to the back burner, while national reconciliation was abandoned as soon as the grand coalition government was in place.

Some of the critical issues the Bill seeks to address include historical injustices and economic crimes. When the issues first came up after President Kibaki came to power in 2002, an attempt to address land grabbing, corruption, and primitive ethnic loyalties was repudiated by members of his Cabinet who feared the law had serious ethnic targets.

Successive governments have been accused of perpetrating injustices in the form of skewed distribution of national resources, which informed the elections last year.

Pervasive tribalism, land grabbing and economic crimes were identified during the National Dialogue and Reconciliation Talks at Serena Hotel as the evils that plunged the country into the post-election violence and needed to be fixed. The three pesky issues, as well as genocide and gross violations of human rights were the gist of MSTF memorandum. The group is calling for an urgent national conference to work out the modalities of setting up the commission.

"It is our expectation that the Justice Ministry and Parliament will work jointly and convene a national conference to discuss this Bill in detail, and, more fundamentally, what character and shape transitional justice agenda for Kenya would take in the context of the mediation agreements and the various processes proposed therein," read the memorandum.