Truth Justice and Reconciliation Comission should have given all mentioned hearing before making report public

By Murigi Kamande

NAIROBI, KENYA: Much has been said about the TJRC Report since it was presented to the President and made public. The opinions have varied. There are those who have welcomed and hailed the report while there are those who have cried foul and even threatened to sue. There is a third category; those who have remained mum although they have been adversely mentioned.

The circumstances leading to the establishment of the TJRC are still fresh in our minds albeit with a heavy heart. The previously known island and haven of peace in  Kenya was on the verge of genocide. The ethnic killings and displacements that followed the 2007 General Election uncovered deep ethnic grievances and divisions that had been entrenched over the years. Establishment of a Truth, Justice and Reconciliation Commission was deemed as the perfect way of unearthing the grievances and charting a way for national healing. As with all other commissions, the appointments were greeted with pessimism from the public and civil society organisations. Even before the dust could settle there were myriad of accusations against chairman Bethwel Kiplagat, and some of the commissioners. The composition of the Commission, from the onset, was viewed as a plot to cover up the same truth, justice and reconciliation sought to be uncovered by the Commission.

Mark Freeman, in his book, Truth Commission and Procedural Fairness describes a Truth Commission as ‘an ad hoc, autonomous and victim-centered commission of enquiry set up in, and authorised by a state for the primary purposes of investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violations or depression and making recommendations for their redress and future prosecutions’.

A cursory glance at the mandate of the TJRC, as provided in the TJRC Act 2008, reveals the broad mandate embodied in the above definition. All truth and reconciliation commissions primarily focus on the victim (or purported victim) and treat such a victim’s narrative as the gospel truth. Apart from South Africa’s Truth Commission, where purported perpetrators were promised amnesty, other commissions worldwide have locked them out of their proceedings.

Procedural fairness (also commonly known as natural justice) guarantees the victim and the perpetrator the right to be heard; the right to be treated without bias and a decision being based on relevant, credible and tested evidence. Having at one point interacted with the TJRC’s staff during the collection of statements, I can authoritatively state that the witnesses relied on by the commission did not meet the credibility test. Most of the statements before the commission were not sworn nor tested by cross-examination. In some instances, community members were coached and required to give the popular narrative in order to buttress the community’s position. This manner of evidence collection resulted in different categories of truth. By relying on these narratives as given by the purported victims and informers, it is clear that the commission regarded their statements as the objective factual truth. The broadly and permissive approach to the admissibility of evidence at the public hearings only bolsters the fact that the information relied upon was not the factual truth but rather a distorted version. The distorted truth had the effect of affecting the credibility of the final report. No wonder the commission heavily relied on and copy and pasted the reports of previous commissions of enquiry.

While it is understandable that TJRC should not have been bound by the strict rules of evidence, the rules of natural justice should have been implemented. Adversely mentioning people’s names without affording them an opportunity to present their side of the story is unjust.

The commission failed to appreciate basic principles of truth commissions. They failed to understand that the truth and reconciliation process is based on a number of presuppositions about political psychology. The primary one is the assumption that knowledge of the truth promotes forgiveness and that reconciliation flows from the truth. Does this assumption exist in the face of distorted truth? My answer would be a categorical No! The distorted truths will naturally hinder reconciliation by not only deepening the wounds of the victims but also hardening the hearts of the purported perpetrators. In such a situation, it is therefore important to weigh the commission’s reports probative value against its prejudicial effect in the public court. Already, we have witnessed in the social media the TJRC report being used as a political tool to demonise others while trying to cast the other political divide as angels. 

Of concern now is whether we throw out the baby with the bath water. Certainly not. It should not be lost to us that massive resources and time was put in the preparation of the TJRC report. The implementation process should therefore not lose sight of the ultimate goal: societal transformation. Providing justice to victims and perpetrators is important, but larger political issues are at stake if proper reconciliation is to occur.

Due to the shambolic process of collecting information by the commission, it remains to be seen how courts will deal with the report. Nevertheless, many parts of the report may offer the much needed information to foster reconciliation and closure among Kenyans.