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State agencies disregard TJRC proposals

By Nzau Musau | Dec 28th 2014 | 4 min read

The year 2014 was yet another lost opportunity for the truth, justice and reconciliation process as it has ended before the State could implement basic recommendations of the report.

The process began in August 2008 when leaders, under the Kenya National Dialogue and Reconciliation, agreed to set up a Truth Justice and Reconciliation Commission (TJRC) to look into Kenya’s troubled past and address long-term grievances that may have contributed to triggering the violence that erupted after the 2007 General Election.

The commission handed over its final report to President Uhuru Kenyatta on May 21 last year and it was published officially two weeks later on June 7. It was tabled in Parliament on July 24 this year, the last time that was heard of it from public institutions.

One and half years later, the Government has ignored the most simplest of recommendations like offering an unconditional public apology to victims of past human rights abuses perpetrated by the State and its agents.

Public apology

Authors of the report had recommended that the President   apologises on behalf of past governments.

“The commission recommends that the President, within six months of the issuance of this report, offers a public and unconditional apology to the people of Kenya for all injustices and gross violations of human rights committed during the mandate period,“ the report said.

In this respect, all victims of acts of sexual violence meted out by State security agents during security operations, including the 2008 post-election violence, should have received apologies. The President was to specifically apologise over the failure of past governments to avert the Turbi and Bubisa massacres despite being in possession of prior information over the attacks. According to the report, the victims of the two massacres should be compensated before May 2016.

 The six-month period within which this apology was expected ran out on October 21 last year.

However, state security agencies such as the Kenya Police Service, Kenya Defence Forces and National Intelligence Service did not have a deadline to apologise for gross violations of human rights committed by their predecessor agencies between 1963 and 2008.

The Judiciary, too, did not have a fixed time within which to issue an apology to Kenyans over its failure to address impunity effectively and perform its role of preventing the perpetration of gross human rights violations.

Additionally, says the report, public memorials for the victims ought to be established by May 2015.

There are, however, recommendations that were to be acted upon within a year, that is before May 21, 2014. The State was to have started negotiations with the British government to seek compensation for victims of colonial injustices and atrocities.

Within nine months (by January 21, 2014), the Indemnity Act, a law which shielded Government acts of commission or omission in North Eastern Province between December 25, 1963 and December 1, 1967, was to have been repealed.

Shifta war

“If the Indemnity Act is not repealed within the stipulated time, the Attorney General shall immediately thereafter (and no later than one month after such six month period) issue a public report explaining why the Indemnity Act has not been repealed and what steps, if any, the Government plans to take to ensure its repeal and to provide accountability for the violations committed during the Shifta War,” the report said.

 Also within the nine-month period, the Ministry of Foreign Affairs was have published the entire Memorandum of Agreement (Arusha Agreement) signed between the Kenyan and Somalia governments which marked the formal end of the Shifta War.

It was supposed to have been published in at least three local newspapers and copies of agreement translated into local languages spoken in northern Kenya and distributed in the area. The Government was to establish a public memorial for victims of the Shifta war by May 21, 2015. All individuals named in the report as responsible for the Bulla Karatasi and Wagalla massacres of the 80s were supposed to be barred from public office, or any other position of public authority.

By May 2015, the Government should have ratified the International Convention for the Protection of All Persons from Enforced Disappearance. By May 2016, the commission expects that a fully equipped modern forensic laboratory will have been established.

Torture victims

By May 21 this year, the government ought to have set up the Office of the Special Rapporteur on Sexual Violence in accordance to the commission’s recommendations. The Commission of Inquiry into the Post- Election Violence, popularly known as Waki Commission, had made a similar recommendation.

The commission recommended that the definition of integrity and the attendant integrity threshold that should be used to either disqualify or remove a person from public office as per Chapter 6 of Constitution of Kenya 2010 be clarified.

“If properly interpreted and applied, it will definitely be a major boost in the war against corruption in Kenya. It should be clearly defined as to when the integrity bar begins to operate,” the commission said.

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