“Individuals or civil society organisations can apply to be enjoined in the petitions that have been filed by those challenging the TJRC report in court as either interested party or as ‘friend of the court’,” Elijah Ambasa, a governance and policy officer at Transparency International, told IWPR.
The human rights community has had an uneasy relationship with the TJRC due to controversies surrounding its work. The final report left out the dissenting conclusions of the commission’s three international members in relation to the chapter on land and conflict. The three commissioners subsequently alleged that the president’s office called for an advanced copy before it was published and told the commission to remove particular sections.
TRJC chairman Bethuel Kiplagat was himself implicated by the report, which accused him of acquiring land illegally and involvement in the planning of a government security operation that led to a massacre of ethnic Somalis in northeast Kenya in 1984. He refused to stand down.
Christopher Gitari, head of the Kenyan branch of the International Centre for Transitional Justice (ICTJ), says that rights groups are also to blame for failing to put sufficient pressure on the government to implement the report.
“Civil society has not been robust enough in ensuring that the two state institutions [the executive and parliament] fulfil what are legislative obligations,” Gitari told IWPR, referring to the original version of the TJRC law.
As well as ICTJ, advocacy groups have also suggested that NGOs should make more of an effort to get the report’s findings implemented.
The Kenya Human Rights Commission (KHRC) said it would be possible to file a lawsuit to challenge the government’s failure to follow the procedures outlined in the original TJRC law. A challenge could also be lodged under laws assuring rights to information given that the government has not published the report, the body said.
“The (TJRC) Act required that after it hands over the report the government should avail it to public,” Esther Waweru, a programme manager at KHRC, told IWPR. “Secondly, one can go to court to challenge the delay in establishing implementation committee and get orders for implementation.”
Another group that is considering action is the International Centre for Policy and Conflict (ICPC) in Nairobi. Its executive director, Ndung’u Wainaina, told IWPR that ICPC and other civil society groups were planning a legal challenge.
“The buck stops with the office of the attorney general and the department of justice,” Wainaina said. “We will file a case against them for failing to conform with the TJRC Act 2008.”
This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.
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