The Truth, Justice and Reconciliation Commission of Kenya (TJRC) was established in 2008. Kenya’s modern history has been marked not only by liberation struggles but also by ethnic conflicts, semi-despotic regimes, marginalization and political violence, including the coup d'état of 1982, the Shifta War, and the 2007 Post-election violence.[1]

The toll of the 2007 Post-election violence included approximately 1,500 deaths, 3,000 rapes, and 300,000 people left internally displaced. The most severe episode of this conflict unfolded over 59 days between Election Day, 27 December 2007 and 28 February 2008. A political compromise was reached that saw the two conflicting parties sign a National Accord, following the mediation efforts by the African Union Panel of Eminent African Personalities chaired by Mr. Kofi Annan.[2]

Background

Despite the reputation of the Rift valley as the cradle of humanity and positive co-existence, the peoples living there suffered through mass human rights violations in the later part of the 20th century. The mass violence in Kenya occurred throughout a period of over 40 years making it difficult to define concretely as post-election violence. To understand the events following the 1992 and 2007 elections in Kenya, one must first understand the complicated ethnic makeup of the Kenyan state. The two tribes primarily involved in the political violence are the Kikuyu people (22 percent of the 2008 Kenyan population) and the Kalenjin people (12 percent of the 2008 Kenyan population), however many other smaller tribes also inhabit Kenya. These ethnic tensions originate in events occurring before independence when British colonists forced the Kalenjin pastoral tribe off their land to develop the Rift Valley agriculturally. With the colonists came Kikuyu farmers to work as sharecroppers in the British fields. Continued competition for economic wealth and power also drove the two tribes apart.

Later when selecting government officials after independence in 1963, the tension between these two tribes increased as, Jomo Kenyatta, a Kikuyu, became president and Daniel Moi, a Kalenjin, became vice-president. After Kenyatta's death, Moi took power and tightened his hold on Kenya through censoring and human rights violations. In 1991 a constitutional reform passed allowing for multipartyism in Kenya. Shortly after in 1992 the first multi-party election since independence took place. Moi won the elections but many doubted the legitimacy of his victory. Violence ensued as Kalenjin supporters of Moi raped, killed, and displaced Kikuyu opposition supporters. Despite Kalenjin attacks on Kikuyu making up the majority of the ethnic violence in Kenya, ethnic conflicts between tribes remained much more complicated. This violence persisted long after the 1992 election with postelection violence reports in 1998, 2002, and 2007. Similar to the 1992 election, in December 2007 incumbent president Mwai Kibaki won an election called “deeply flawed” by observers.[3] The Kalenjin, who supported the opposition leader Raila Odinga, burned down the houses and hacked to death Kikuyus who supported Mr. Kibaki. Weeks after the election, Kikuyus violently took revenge forcing other ethnic groups out of Kikuyu dominated areas. This post election violence took the lives of over 800 people and displaced at least 300,000.[3][4][5]

1992 Post-election violence

See also: Kenyan general election, 1992

President Daniel Arap Moi in 1979
President Daniel Arap Moi in 1979

The 1992 multiparty General Elections were riddled with irregularities with some opposition candidates even being physically prevented from presenting their nomination papers. The incumbent, then President Daniel Arap Moi, campaign freely all over the country while other party leaders could not. Where the opposition could not campaign freely, President Moi traversed the country using government resources. Moreover, he enjoyed a monopoly of media coverage from the official broadcaster, the Kenya Broadcasting Corporation (KBC). In addition, the Electoral Commission was made up of presidential appointees whose loyalty to the incumbent was never in doubt. The most notorious instance of interference with the electoral process was the 1988 General Elections where many losing candidates were declared winners. The then sole ruling party, KANU, had already secured the monopoly for political power through a constitutional amendment in 1982 that made it the sole political party. In the 1991 clashes, non-Kalenjin and non-Maasai ethnic groups were “attacked, their houses set on fire, their properties looted and in certain instances, some of them were killed or severely injured with traditional weapons like bows and arrows, spears, pangas, swords and clubs.” In its investigations, witnesses told the Kenya National Commission on Human Rights, (KNCHR), that violent clashes between the Kalenjin, on the one hand, and the Kikuyu and Kisii on the other, began in 1992. These clashes pitted these groups along ethnic lines as well as on political lines. In 1992, the Kalenjin were overwhelmingly members of the then ruling party, the Kenya African National Union, (KANU). President Daniel Arap Moi, a member of the Kalenjin community, was the President of KANU and the country. He was opposed to the introduction of multi-party politics in the country and the existence of opposition political parties particularly in the Rift Valley. Many non-Kalenjin and non-Maasai communities in the Rift Valley supported the then budding opposition parties. The Akiwumi report on the 1992 clashes reported that the provincial administration was partisan in its support of the then KANU government and against those considered to be opposed to KANU in the Rift Valley. In 1992 the provincial administration also showed open partisanship in favour of KANU.[6]

1997 Post-election violence

See also: Kenyan general election, 1997

Kenyan Coat of Arms
Kenyan Coat of Arms

In December 1997, Kenyans went to the polls to elect members of parliament and the country's president. The elections were conducted in the glare of international publicity, not least because the international community was seriously concerned about whether the elections would be free and fair. Despite evidence of electoral irregularities, political violence and a legal framework which favoured the incumbent government, observers of the elections endorsed the resulting victory of President Moi and the Kenya African National Union (KANU) as being an expression of the will of the people.

In the wake of the elections, there rapidly followed a waning of international interest in political developments in Kenya. This was despite the fact that within a month of the elections, politically motivated ethnic 'clashes' erupted in Rift Valley Province. The violence left hundreds of people dead or injured, and thousands of others displaced from their homes and living in makeshift shelters. It was clear that this violence was following a pattern similar to that encountered during previous outbreaks of conflict in Kenya between 1991 and 1994 – prior to and after the country's first multi-party elections in 1992— in which predominantly Kalenjin supporters of KANU attacked members of ostensibly ‘pro-opposition’ ethnic groups. The important difference between then and now was that for the first time, members of a ‘pro-opposition’ ethnic group, the Kikuyus, were organising and actively fighting back.

Although the 1997 elections passed off with less violence than had been the case in 1992, events in January 1998 put paid to any hopes that political violence might be a thing of the past in Kenya. On the night of 11 January 1998, some members of the Pokot and Samburu ethnic groups raided the home of a Kikuyu widow at a place called Mirgwit in the Laikipia District of the Rift Valley Province. The raiders raped the woman and stole some livestock from the household. A group of Kikuyu men followed the raiders but, having failed to catch up with them, entered a Samburu compound where, in retaliation, they mutilated livestock that they found there. Mutilation of livestock is highly taboo for pastoralists such as the Samburu and Pokot. Accordingly, it was almost inevitable that there would be some kind of response by the owners of the livestock.

On the night of 13 January 1998, some Pokot and Samburu men attacked Kikuyu communities in the Magande, Survey, Motala, Milimani and Mirgwit areas of Ol Moran in Laikipia. It appears that the attackers were armed not only with spears, bows and arrows, but also with guns. It was claimed that some of the attackers were dressed in military-type clothing. It has been estimated that over 50 Kikuyus were killed during these attacks and over 1000 others fled the area and sought refuge at the Roman Catholic Church at Kinamba, from where they were later relocated to temporary shelters at Sipili and Ol Moran. On 21 January, about 70 unidentified people invaded three farms in Njoro including one belonging to the newly elected DP Member of Parliament for Molo Constituency, Kihika Kimani. Three days later, groups of what local residents described as Kalenjins attacked Kikuyus in parts of Njoro in the same constituency. There were varying explanations given for these attacks. One version of events blamed them on the refusal of local Kikuyu traders to supply goods and services to Kalenjins in response to the events in Laikipia. Another suggested that this was simply an unprovoked attack on Kikuyus by local Kalenjin youths. The attack on Kikuyus on 24 January provoked a counter-attack by a group of apparently wellorganised Kikuyus, who on 25 January attacked Kalenjin residents of Naishi/Lare in Njoro.

According to police reports, 34 Kikuyus and 48 Kalenjins were killed during these initial attacks and over 200 houses were burnt down. Hundreds of people from both communities were displaced by the fighting, and many of them fled to temporary 'camps' at Kigonor, Sururu, Larmudiac mission and Mauche. During its visit to Kenya the joint mission witnessed the very poor conditions in which displaced people in these camps were living. Sporadic fighting continued during February and March 1998. By 11 March, police reports were estimating that at least 127 people had been killed since the 'clashes' had begun in January.[7][8]

2007 Post-election violence

See also: Kenyan general election, 2007 and 2007–2008 Kenyan crisis

Whereas between 1992 and 2002 most election related violence occurred during the pre-election phase at the time of voter registration, party campaigns and nominations, the 2007 elections were characterised by excessive violence, and crimes against humanity, especially after the declaration of Mwai Kibaki of the Party of National Unity (PNU) as president in the contested results. The 2007–08 post-election violence shook the nation because of its spread, speed and ruthlessness. The closely contested presidential election was characterised by unrealistic promises, fragmentation, balkanisation, media hype and strong expressions of ethnic nationalism. Inspired and propelled by the rejection of the 2005 Referendum on a government sponsored constitution, the main opposition party went full throttle to wrest power form the incumbent in the general elections.[9]

The 2007–2008 Kenyan crisis refers to a political, economic, and humanitarian crisis that erupted in Kenya after incumbent President Mwai Kibaki was declared the winner of the presidential election held on 27 December 2007. Supporters of Kibaki's opponent, Raila Odinga of the Orange Democratic Movement, alleged electoral manipulation. This was widely confirmed by international observers, perpetrated by both parties in the election.[10][11]

In part due to the ethnic and geographic diversity of the ODM coalition, no one narrative can explain the reaction of opposition supporters to the announcement of Kibaki's swearing-in. In addition to staging several nonviolent protests, opposition supporters went on a violent rampage in several parts of the country, most noticeably in Odinga's homeland of Nyanza Province and the slums of Nairobi, part of his Langata constituency. Police shot a number of demonstrators, including a few in front of TV news cameras, causing more violence directed toward the police.[12]

Targeted ethnic violence (as opposed to violent protests) escalated and at first was directed mainly against Kikuyu people – the community of which Kibaki is a member – living outside their traditional settlement areas, especially in the Rift Valley Province. This violence peaked with the killing of over 30 unarmed civilians in a church near Eldoret on New Years Day. Tensions in the Rift Valley have caused violence in several previous Kenyan elections, most notably in the 1992 Kenyan Elections. Some of the Kikuyu also engaged in retaliatory violence against groups supportive of Odinga, primarily Luos and Kalenjin, especially in the areas surrounding Nakuru and Naivasha.

In Mombasa, Muslim Kenyans took to the streets to protest the electoral manipulations and air their own grievances, though ethnic tensions played much less of a role in these protests. Looters also struck a number of stores in Mombasa. The slums of Nairobi saw some of the worst violence, some of this ethnically motivated attacks, some simple outrage at extreme poverty, and some the actions of criminal gangs. The violence continued sporadically for several months, particularly in the Rift Valley.

Former UN Secretary General Kofi Annan arrived in the country nearly a month after the election, and successfully brought the two sides to the negotiating table. On 28 February 2008, Kibaki and Odinga signed a power-sharing agreement called the National Accord and Reconciliation Act, which establishes the office of prime minister and creates a coalition government.[1] The power-sharing Cabinet, headed by Odinga as Prime Minister, was eventually named on 13 April, after lengthy negotiations over its composition;[13] it was sworn in on 17 April.[14]

The National Accord

The two parties agreed to tackle four main agenda items to end the political crisis and address its underlying causes.

The TJRC

The TJRC (Truth, Justice and Reconciliation Commission of Kenya) is part of the accountability component of Agenda Four of the National Accord signed in 2008. By addressing the cause and effects of historical injustices and gross violations of human rights the TJRC will contribute towards national unity, reconciliation, and healing. The Commission is established by an Act of Parliament (Truth Justice and Reconciliation Commission Act no. 6 of 2008) to investigate the gross human rights violations and other historical injustices in Kenya between 12 December 1963 and 28 February 2008.

Agenda Four of the National Dialogue and Reconciliation process of 2008 that relates to long term issues and reforms provides the framework for transitional justice, with the Truth, Justice and Reconciliation Commission driving the transitional justice agenda.

Kenya's civil society have called for a truth, justice, and reconciliation process since 2002 when the NARC Government came into power after the twenty four-year rule of President Moi. In 2003, a Government appointed Task Force recommended establishment of a Truth Justice and reconciliation Commission. Had this recommendation been acted on then, perhaps the country might have avoided the post December 2007 election violence witnessed.[6]

Mandate of the TJRC

The Truth, Justice, and Reconciliation Commission of Kenya has the ability to investigate, analyse, and report on what happened between 1963 and 2008 in regards to gross violations of human rights, economic crimes, illegal acquisition of public land, marginalisation of communities, ethnic violence, the context in which the crimes occurred, and educate the public about its work. The TJRC does not, however, have the power to prosecute. They can recommend prosecutions, reparations for victims, institutional changes, and amnesty in exchange for truth for perpetrators who did not commit gross human rights violations.

The TJRC investigates, analyses, and reports on human rights abuses, economic crimes, illegal acquisition of land, marginalisation of communities, and ethnic violence. In terms of justice, lack of retributive justice has been a source of concern for many Kenyans. Though the commission can recommend prosecutions, there has been a long-standing culture of impunity in the country, which threatens to keep political leaders safe from prosecution. However, the commission has focused on justice in terms of recognition and distribution. The commission has sought to give victims and perpetrators equal voice in hearings, and have included hearings where children may share their stories, with guidance from counselors. Recommendations for redistribution of power and resources has been a focus of the mandate, as major conflicts have arisen due to imbalances in power, land, and resources between ethnic groups. Additionally, the commission has focused on educating the country about the history of violence, and emphasises promoting reconciliation through revealing of truth.

The public is invited and encouraged to participate to fulfill the goal of educating the public. Members of the public may attend the public hearings, and can volunteer to assist the TJRC in fulfilling its mandate. They may also make submissions to the commission regarding the TJRC mandate. Victims may apply for reparations if they qualify.

Objectives

In its work the Commission will pursue the following goals and objectives:

Specific objectives for investigating human rights abuses:

Specific Objectives for Investigating Economic/Public Land Crimes

Specific objectives for the recommendation process

Make Recommendations in Response to Human Rights Abuses in Terms of:

Make recommendations as to:

For information visit TJRC Kenya website.[15]

The Commissioners

The commissioners of the TJRC are both local and international, and there has been controversy regarding the legitimacy of the commission due to its commissioners. Some of the commissioners and people involved with the commission were involved with the previous government, and, consequently, people question the impartiality of the commission. Nevertheless, the commissioners offer different types of expertise that they can apply to Kenya's TJRC.

Departments

The work of the TJRC is being accomplished through the work of seven different departments.

Activities of the Commission

The Commission will undertake the following activities to fulfill its mandate;

Statement taking

Statements recorded from victims across the country are the main source of information for the TJRC on gross human rights violations suffered by them during the mandate period (12 December 1963 and 28 February 2008). The statement taking process provides victims with the opportunity to tell the truth about their experiences and those of close friends and relatives.

Hearings

The TJRC will conduct public and private hearings at which victims, perpetrators, experts will give testimony relating to gross violations of human rights.

Individual hearings

Individual hearings will focus on individual cases, and the experience of individuals with respect to violations within the mandate of the Commission.

Thematic and event hearings

Thematic hearings will focus on types of violations and other broad themes within the mandate of the Commission.

Institutional Hearings

Institutional hearings will focus on the role played by an institution or institutions with respect to violations within the mandate of the Commission

Community dialogues

The TJRC will hold discussion forums bringing together different groups across the country (ethnic; religious; chiefs; women; youth) to chart ways of establishing reconciliation, harmonious co-existence and national unity. This aspect of the TJRC’s work presents avenues for collaboration with the National Cohesion and Integration Commission (NCIC), and other Agenda Four Commissions.

The final report

This is the Truth Justice and Reconciliation Commission’s main product. It will document the Commission’s work relating to the following aspects:

Timeline: The Commission began in August 2009 with an operational period of two years. This period includes three months prior to beginning operations for set up, and three months following as a "winding down" period. The Commission requested a 6-month extension, thus the current timeline is as follows:


A full copy of the Final Report, including the dissent submitted by the international Commissioners, can be found at https://digitalcommons.law.seattleu.edu/tjrc/.

The TJRC and the International Criminal Court

The International Criminal Court (ICC) became involved in Kenya when Kenya ratified the Rome Statute of the International Criminal Court on 15 March 2005, which gave the ICC jurisdiction over war crimes, crimes against humanity, and genocide committed in Kenya after the statute came into force, or July 2002. The ICC has jurisdiction only when the country in question fails to act on crimes against humanity that were perpetrated on its land. The Kenyan government created the Commission of Inquiry on Post Election Violence (CIPEV), otherwise known as the Waki Commission, in February 2008, which was an international commission of inquiry with the aim of investigating the post-election violence that occurred in Kenya. One of the many suggestions in the official report that the Waki Commission made was that the Kenyan government establish a tribunal of both international and national judges to investigate and prosecute perpetrators of the gross human rights violations. The commission gave the government a limited amount of time to agree to create a special tribunal, and made it clear that the commission would give its findings to the ICC if the government failed to establish the tribunal within the given timeframe.[26] In February 2009, after the Kenyan Parliament voted against founding the tribunal and no further action was taken by the government, the Waki Commission handed over its information, including a list of those believed to be responsible for the violence, to the ICC. On 26 November 2009, the Prosecutor requested permission from the court to investigate the crimes against humanity during the post-election violence in Kenya, and was granted permission to do so by the majority of the court. After carrying out investigations against six prominent individuals believed to be responsible for the crimes against humanity, the International Criminal Court investigation in Kenya decided to send four of them to trial. The government has protested the findings. It asked the UN to postpone the ICC's Kenya case, and has put up substantial resistance to the ICC.[27] In addition, confidence in Kenya's judiciary has declined, and, as part of the National Accord made after the 2008 violence, the government has responded by launching an investigation into the judiciary. Four senior judges, Justice Samuel Bosire, Justice Joseph Gregory Nyamu, Justice Samuel Cornelius Riaga Omolo, and Justice Emmanuel Okelo O'Kubasu, were declared unfit for office by the investigation in April 2012. The two senior Court of Appeals judges, Justice Bosire and Justice Nyamu, were removed from office because of their involvement with the Goldenberg scandal trials. It is expected that more judges will be removed from office as the investigation continues. This ruling marks the beginning of the second phase of the vetting process, and the investigation may end the corruption in Kenya's own legal system. [28]

Criticism and media coverage

The relative immaturity of Kenya’s TJRC makes it difficult to evaluate the commission’s success. This immaturity however also secures a great wealth of recent discussion on the TJRC and many opinions regarding its success. For example, the vice-president of the International Center for Transitional Justice recently spoke of the International Criminal Court’s involvement in the efforts to reconcile Kenya. He commented that, “This week's decision in The Hague [confirming four Kenyans must answer to charges of crimes against humanity] was welcomed peacefully across the country. It is telling that most Kenyans support the ICC and have little faith in their own judiciary, which is widely perceived as corrupt.” He called the Kenyan government to fulfill their responsibility to pursue justice at home to avoid violence after the anticipated 2012 election. Similar criticism came from the United States before Hillary Clinton’s visit in August 2009. Specifically the US criticised the use of local courts to try suspects accused of perpetrating violence. These courts, the US argued, had a backlog of hundreds of thousands of cases and a reputation for corruption. Critics also question the credibility of the commissioners because of their connection to Moi's regime and its gross human rights violations. Deputy chair of the commission, lawyer Betty Murungi, resigned saying that she found it difficult to fulfill her duties when the commission leader, Bethwell Kiplagat, faced accusations. Additionally, the inability of the commission to meet its 11 November 2011 report deadline only enhanced public scepticism. The task of reconciling the people of Kenya after the series of gross human rights violations that have occurred of the past half-century requires a stable commission and a government that the people of Kenya can believe in.[29][30][31]

References

  1. ^ Post Election Violence in Kenya. Dialogue Kenya
  2. ^ Kenya National Dialogue and Reconciliation Monitoring Project. south.co.ke
  3. ^ a b Jeffrey Gettleman (31 January 2008) "Official Sees kenyan Ethnic Cleansing". The New York Times
  4. ^ T. Craig Murphy, "A Comparative Analysis of Violence in Kenya", University of Denver Portfolio.
  5. ^ "Kenya: Ethnic fighting between Kikuyu and Kalenjin in the Rift Valley (1998–1999)," The UN Refugee Agency, 3 August 1999.
  6. ^ a b doc.pdf "On the Brink of the Precipice: A Human Rights Account of Kenya's Post-2007 Election Violence"[dead link]. Kenya National Commission on Human Rights, 15 August 2008.
  7. ^ Daily Nation, 11 March 1998.
  8. ^ Edge Kanyongolo (December 1998) "Kenya: Post-election political violence". Article 19.
  9. ^ Kimani Kjogu, Healing the Wound: Personal Narrative About the 2007 Post-Election Violence (Nairobi: Twaweza Communications, 2009).
  10. ^ "Kenya rivals agree to share power". BBC News. 28 February 2008. Archived from the original on 29 February 2008. Retrieved 1 March 2008
  11. ^ Wangui Kanina (18 September 2008) "Kenya's election seen as badly flawed". Reuters.
  12. ^ "Police kill unarmed civilian". KTN. 16 January 2008. Retrieved 2008-07-11. (AFP) – 26 January 2008 (26 January 2008). "AFP: Politician's portrait marks border in Kenyan slum". Afp.google.com. Retrieved 2010-05-01.
  13. ^ "Kenya unveils 40-seat cabinet", Al Jazeera, 13 April 2008.
  14. ^ "Odinga sworn in as Kenya PM", Al Jazeera, 17 April 2008.
  15. ^ http://www.tjrckenya.org Truth Justice and Reconciliation Commission of Kenya
  16. ^ Lordrick Mayabi (11 April 2012) Kiplagat, TJRC foes call a truce. capitalfm.co.ke
  17. ^ Bethuel Kiplagat. africa-confidential.com
  18. ^ The Commissioners. tjrckenya.org
  19. ^ Finance and Administration Unit. tjrckenya.org
  20. ^ Communications Unit. tjrckenya.org
  21. ^ Special Support Services Unit. tjrckenya.org
  22. ^ Legal Affairs Unit. tjrckenya.org
  23. ^ Investigations Unit. tjrckenya.org
  24. ^ Research Unit. tjrckenya.org
  25. ^ Civic Education and Outreach Unit. tjrckenya.org
  26. ^ “The Waki Commission Report”. AfricaFiles, 15 October 2008.
  27. ^ Kevin J. Kelley (19 March 2011) “Why Kenya failed to defer ICC cases at Security Council”. Daily Nation.
  28. ^ Wahome Thuku and Isaiah Lucheli (26 April 2012) “Scandals and past rulings end careers of four senior judges”. The Standard
  29. ^ Paul Seils (2012) "ICC's Kenya decision is no cause for celebration". International Center of Transitional Justice
  30. ^ Tom Maliti (4 August 2009) "US criticizes Kenya ahead of Clinton's visit". Hillary Clinton Club
  31. ^ Adow Mohamed (27 April 2011) list_messages/38270 "KENYA: Truth Commission's capacity questioned", AfricaNews.