, By Joyce J. Wangui
NAIROBI, Kenya, Aug 27 – Victims of various human rights violations and historical injustices in the country have questioned delays in enforcing President Uhuru Kenyatta’s establishment of the Sh10 billion Restorative Justice Fund.
The president announced the fund in March this year during his State of the Nation address to Parliament, but it is yet to be operationalised.
He also offered an apology for past injustices meted upon Kenyans, including the most recent post-election violence.
Victims say the move, though noble, is not anchored on sincerity because of the delay evidenced in the release of monies. Others question the basis under which this money will trickle down to the actual victims.
More than 150 victims and survivors of political turmoil, torture, detention, gender based sexual violence as well as Mau Mau veterans converged for a two-day meet in Kasarani under the National Victims and Survivors 5th Convention to get an update on the Restorative Justice Fund as well as on progress in the implementation of the Truth, Justice and Reconciliation Commission report.
According to Michael Ndungu, the director of national values and national cohesion in the Office of the President, there has been no action yet to implement the fund pledged by the president because there is no reparations policy put in place.
“The government is still putting in place mechanisms to operationalise the fund,” he told the gathering.
The absence of a legal framework for reparations and compensation has not augured well with most victims, who feel that the government is derailing their road to recovery which includes rebuilding their lives that have been shattered in violations.
A further delay will only infuriate them more.
A woman victim expressed fears that lack of a reparations structure could open the fund to corruption.
“We are suffering. Some of us have died waiting. People are in agony. We still pay for drugs on medication,” said a disgruntled woman whose husband died in the 2007-8 post election violence.
A man who had travelled from Kisumu hoping to go home with funds was seemingly disappointed.
“I came all the way expecting to be paid my dues. Where is the money? Are we really going to be compensated?” He is a survivor of police shootings during PEV.
Bishar Ismail, a witness of the 1984 Wagalla massacre faulted parliament’s delay in implementing the TJRC report.
“I was a statement taker in the TJRC. We thought TJRC would bring us healing. These statements were taken back in 2010 and time has really elapsed. What is the delay for?”
Most of the victims and survivors gathered in the convention were statement takers during the workings of the TJRC. They looked to the commission to bring justice through healing and reconciliation. Since 2013, when the commission’s report was released and given timelines for implementation, Parliament has yet to adopt it.
“This is the time to act. We must not sit back and relax. We need action,” said yet another victim.
Previously, the courts awarded compensations to victims of political violations but the government appealed those awards, saying it has no money.
In a joint statement, victims demand a withdrawal of the appeals, “It is in this regard that we now require the Attorney General to withdraw all appeals he has filed against awards made by the courts in favour of victims and survivors of past human rights violations. Additionally, we invite the Attorney General to hasten payment of compensation already awarded by the courts to victims and survivors of human rights violations.”
Others feel the fund could be a lush fund for the next elections.
However not all survivors are eager on the fund. Some prefer a national healing and reconciliation through truth telling, as a way of recovery.
*Wanjiru, whose husband died in the infamous Nyayo House Torture Chambers moved the gathering when she asked what amount of money could heal her pain.
“I appreciate the President’s fund but can money really bring my husband back?” She recommends a mechanism where perpetrators and victims can face each other for forgiveness. “I need peace more than the money.”
According to President Kenyatta, the fund that will run for three years will provide a measure of relief and will underscore his government’s goodwill.
In his speech in Parliament, he alluded to a report from the Office of the Director of Public Prosecutions on the hiccups in prosecuting PEV cases of 2007/08.
“It is the opinion of the Director of Public Prosecutions that there are challenges to obtaining successful prosecutions. These challenges range from inadequate evidence, inability to identity perpetrators, witnesses fear of reprisals, and the general lack of technical and forensic capacity at the time.”
“Nonetheless, the Office of the Director of Public Prosecutions recognises there were victims and recommends that these cases be dealt with using restorative approaches.”
A survivor of gang rape during PEV asked why President Kenyatta made such an apology through Parliament. “I wish the president can have a forum with us survivors and apologise to us. That way, we will feel his words more.”
Victims jointly criticized the National Assembly’s reluctance to prioritise, debate and act on the TJRC report. Part of their statement reads, “It is a source of great frustration for thousands of Kenyans still nursing injuries physical, emotional and psychological from the dark years of our history.”
Not a favour but a right
Justice experts too have dismissed the government’s restorative justice measures as a way of covering up prosecutions for perpetrators.
Njonjo Mue, a transitional justice expert says restorative justice should “not be an alternative to retributive justice.”
“Prosecution cannot be covered by restorative justice, in this case monetary compensation. Government must take perpetrators to book.”
He added that restorative justice should complement punitive measures. Mue asked, “This fund that has been set, where is the perpetrator in all this?”
Additionally, Mue reminded victims and survivors that “Reparation is not a favour; it is a right of the victims,” adding that it had nothing to do with goodwill,” “It is not a gift.”
He was reacting to a statement from the president’s speech that said that the fund ‘underscores the government goodwill.’
Nonetheless Mue who is also the programme advisor of the Kenyans for Peace with Truth and Justice lauded the president’s apology, his acknowledgement of all those affected by human rights violations over five decades, the establishment of the fund and a state department to manage it were commendable steps.
However, he faulted the inability to push Parliament to dispense with the TJRC report, his failure to create a reparations policy and refusal to outline how victims would participate.
On Thursday, victims and survivors will petition Parliament to pass the Truth, Justice and Reconciliation Commission report to pave way for the implementation of its recommendations.
In the petition, they will demand that parliament passes laws to protect the restorative justice fund so that it is used appropriately.