TJRC report: A statement or testament

By Haron Ndubi

The Truth Justice and Reconciliation Commission was created soon after the settlement of the violence that followed the disputed presidential elections of 2007.

As part of the Agenda Four Commissions the TJRC was established under an Act of Parliament in order to help the country to have a structured and meaningful way of confronting the past with regard to historical injustices, which have continued to fester as a result of impunity.

The commission has since released its report and delivered it to the President. The report has made headlines for the adverse mention of Kenya’s who is/was who from the periods ranging from prior to 1963(where its mandate is aligned) to February 2008 when post-election violence was brought under effective control by the Kofi Annan mediation process.

The report will be judged by Kenyans and friends of Kenya on whether it answers to the primary questions that justified the formation of the Commission in the first instance, namely: a) Does it tell the Truth? Or put another way, did the Commission endeavour to and find the Truth? Beyond the existing diverse reports from different people and institutions, what more did the Commission unearth? b) Does the report recommend actions and programmes that will result to Justice with regard to the past, present and future? C) Will the outcomes of such actions and programmes lead to Reconciliation of the country?

The commission was mandated to make legal, administrative and political recommendations that once implemented would result to reconciliation and accountability.

There is a legitimate expectation that the recommendations once made ought to be in accord with the Constitution of Kenya, which Kenyans enacted and gave themselves, in of itself one of the outcomes of Agenda Four. Particularly, the spirit of the Constitution as captured in the Preamble and Article 10 which outlines the national goals and values amongst of which are transparency, good governance, democracy, equality, equity and justice. These are values that have eluded the country since it was only those in power and the privileged that enjoyed the protection and assurance from the state.

In answer to the first question regarding Truth, the Commission will be remembered to have had long running controversies that led to the resignation to one Vice Chair who debatably rendered to Commission the highest level of legitimacy at the time. However, without judging the report on the legitimacy deficit that the commission suffered, one must take note of the general near vague nature some of the recommendations are couched.  The commission admits that a number of persons who were adversely mentioned failed to appear to respond to the allegations made against them.

The Commission therefore took the complaints to be truthful in keeping with the traditions and usage of the International Human Rights institutions such as the African Commission for Human and Peoples Rights ACPHR. There will be plenty of challenge from those who adversely mentioned to challenge the report and possibly have their names removed from the report like happened to the Akiwumi and Bosire reports on Tribal Clashes and Goldenberg respectively.

The recommendation for the President of Kenya to apologize on behalf of former post independence governments is welcome. It should however be made through formal proceedings such as in the Parliament or any of the constitutionally mandated mechanisms of communication by the President to the people of Kenya.

A recommendation of apology from the British government on behalf of the colonial government is recommended as well. It is however, not clearly stipulated how that apology would be executed or expected to be formally delivered to the people of Kenya because the Commission was a creation of domestic law with limited jurisdiction. But more importantly, roping in the demand or recommendation from the British government would in my view serve to equate it with the demand for an apology from the President of Kenya thus watering down the impact because of lack of an enforcement mechanism.

Perhaps more intriguing is the recommendation that the Judiciary apologizes for its role in perpetuating impunity over the successive regimes. Knowing that the Judiciary is supposed to be independent and above the popular politics of the country, what will such formal apology mean to Kenya? What will it mean to the litigants who were denied justice from within the corridors of justice? What happens to the judges and magistrates who individually and collectively condoned the aberrations before them?

In some way some judges have said “sorry” over their guilt in condoning human rights violations. Justice Omollo is quoted in a Court of Appeal decision in Nakuru regretting that past. A number of Judges and magistrates have been vetted and removed from the judiciary for; inter alia, their failure to uphold human rights and public interest.

The report interestingly recommends further investigations against people previously notoriously suspected of violating the law and public policy. The persons named cascade through most public sectors. How does the report anticipate effective implementation with legal consequences against those named, considering that they include those presiding over the executive, the rank and file of security sector officers, those that are in both the National Assembly and the Senate?

Implementation and enforcement of the report is going to be a herculean task. It will be met with legal challenges, lack of political will to implement and even lack of the technical expertise to thoroughly and adequately investigate further and beyond the previous attempts.

Lastly, the other challenge is the new political mantra of “moving on”. There will be people to say, the country has come this far in spite of that ugly history. Let us move on and forget the past as we focus on the digital future. They will not be wished away.