Three Judge Bench to decide truth team's fate

By Gakuu Mathenge

The fate of the Truth, Justice and Reconciliation Commission now hangs in the hands of a three Judge Bench hearing a case challenging it to stop proceedings.

The applicants argue the TJRC Act defeated the quest for justice even before it started, as there were laws still in place that facilitated rights violations, and which had yet to be repealed.

Justices John Mwera, Hannah Okwengu and David Maraga are expected to rule on whether TJRC process continues or stops after submissions are closed on Thursday next week.

For three straight days (June 21-23), the judges listened to submissions by applicants, who want the process halted on grounds that TJRC Act (2008) discriminated against a section of Kenyans who deserved to be heard. The Act that mandates TJRC to hear, document and make recommendations for compensations and reparations for rights violations between December 1963 and February 2008, allegedly discriminates against victims of rights violations suffered before December 12 1963, and who were still alive.

Lawyer Wanyiri Kihoro, representing the applicants, said the Act and the process violated Article 27 of the new Constitution, that protected citizens from discrimination on account of age, sex, religion, race or ethnicity. Article 27 (1) (Chapter 4, Bill of Rights) states: "Every person is equal before the law and has the right to equal protection and equal benefit of the law".

The applicants, most of them senior citizens, say the TJRC Act discriminates against them by granting some Kenyans whose rights were violated after Independence a right to present themselves before the TJRC, and denying them the same.

Mr Kihoro relies on affidavits sworn by victims of past violations dated before 1963 to make his case.

Among them is related to Kolloa Massacre of 1950 in Baringo County, where 52 individuals are said to have been murdered by a district commissioner, for opposing the colonial rule under the leadership of a Kalenjin spiritual leader and prophet Luka Pkesh.

A report on the incident by then Kenya Governor Philip Mitchel, in April of 1950, says they were killed "for being dangerous, rebellious, armed and out to attack the colonial government of Kenya."

Other affidavits are by associates of late spiritual and political leader Elijah Masinde, who were arrested in 1948 and banished from Malakhisi, and others exiled and detained in Meru and Nyanza until 1960.

Gen Karari Njama, a former Mau Mau freedom fighter, has also sworn an affidavit on behalf of freedom struggle veterans who want TJRC to grant them opportunity to tell their suffering and violations in the hands of the British colonial government,

The application was filed by former political detainees Njeru Kathangu, Otieno Mak-Onyango, Koigi Wamwere and former Assistant minister Kalembe Ndile.

Besides discrimination claims, Kihoro says, the applicants argue regardless of opportunity to present their grievances before the TJRC, their case was defeated even before it began "since some violations were committed under the laws that are still in place".

"There are laws still in place that facilitated rights violations, and which had yet to be repealed. The Land Titles Act of 1908 rendered over 2 million Coast residents squatters on their ancestral land, and the Indemnity Act (1970) that protects officials behind atrocities committed during Shifta War (1963-67), are yet to be repealed, which is an insurmountable hurdle on the victim’s quest for justice," the applicants says. The TJRC is represented by lawyer Evans Monari, who started his submission on Thursday, before the proceedings were adjourned to resume on Thursday next week.