The big test for truth team

By Gakuu Mathenge

The first task for the Truth, Justice and Reconciliation Commission (TJRC) will be to dispel a barrage of cynicism the team is not credible.

Scepticism met the team gazetted by President Kibaki on Wednesday, and inaugurated by Chief Justice Evan Gicheru on Friday.

Chairman of Truth, Justice and Reconciliation Commission Bethwel Kiplagat at the Ministry of Justice headquarters, Nairobi, where his team met Justice Minister Mutula Kilonzo on Friday. Photo: Collins Kweyu/Standard

The chairman, Ambassador Bethwel Kiplagat, starts out with the burden of ridding himself the perception he is unfit for the job given he was a senior Government official, a PS, and "part of the system" during the period he is supposed to probe.

Some also question the timing and the Government’s commitment to a genuine TJRC mechanism.

"I’m not persuaded Kenya is ripe for a TJRC. TJRC mechanisms work best immediately after a transition, when a new administration has taken power from another that had enjoyed impunity. The incoming regime must enjoy broad mandate and confidence to execute a meaningful TJRC. Those conditions are not present. A genuine TJRC is not about sanitising perpetrators, but seeking justice for victims," said former Kabete MP Paul Muite.

But he added, the inclusion of renowned human rights crusaders Mrs Betty Murungi and Ms Margaret Wambui Shava was a saving grace for the commission, which could make some people accord it the benefit of the doubt.

Balanced Dialogue

Other commissioners are former LSK chairman Tom Ojienda, Tecla Namachanja, Maj-Gen (Rtd) Ahmed Sheikh Farah, Gertrude Chawatama from Zambia, Berhanu Dinka from Ethiopia and Ronald Siye from the US.

Former minister Dr Amukowa Anangwe, who served in the Task Force on Establishment of TJRC appointed by then Justice Minister Kiraitu Murungi in 2003, says those unhappy with former senior Government officials sitting on the commission are mistaken.

"It is important that individuals from both aggressors’ side and victims’ side serve in a TJRC so that people can have a balanced and effective dialogue in search of the truth and answers. Otherwise, if you have victims on one side, and perceived aggressors on the other, you are most likely to end up with persecution, not justice and reconciliation," said Anangwe. He says his experience in the Task Force chaired by legal scholar, Makau Mutua, taught him "Kenya is a nation of angry and bitter people".

"I was shocked with the amount of collective and unaddressed anger. In central Kenya, it dates back to the emergency period and other regions have their own genuine issues and grievances," he said.

The Prof Mutua task force recommended a TJRC in its report, which was handed over to the Government in August of 2003.

The task force also set the 1963 reference date. Anangwe says it was deliberate because independent Kenya administrations were duty bound to address excesses of the colonial government, including the emergency period, but they neglected to do so.

Indemnity provisions in Kenyan statutes that shield security personnel from being held accountable for atrocities committed "in the line of duty" mean the TJRC may not inquire into past atrocities committed by security forces and administrative officials, especially in the North Eastern and Upper Eastern regions. Human rights activist Guyo Liban said the TJRC creation discriminates against the people of northern Kenya.

Indemnity Act

The Indemnity Act, Chapter 44 (1970) of the Laws of Kenya says in part: "Act of Parliament to restrict the taking of legal proceedings in respect of certain Acts and matters done in certain areas between the December 25, 1963, and December 1, 1967… No proceedings or claim to compensation or injury shall be instituted or entertained by any court or by any authority or tribunal established by or under any Law for or on account of or in respect of Act, matter or thing done within or in respect of the prescribed area, after the December 25, 1963, and before December 1, 1967… "

Section 2 of the Act defines the prescribed areas to mean the Northern Eastern Province, and Isiolo, Marsabit, Tana River and Lamu Districts.

The law is thought to have been crafted to protect members of the armed forces against atrocities against civilians during the Shifta War (1964-1968).

"Civilians in the region affected by the Shifta war may not get justice unless this law is amended" Liban said.