NAIROBI, Kenya, Feb 9 - The Truth Justice and Reconciliation Commission has stated that the Indemnity Act of 1972 (Chapter 44 of the Laws of Kenya) does not and will not affect its ability to fulfil its mandate.

In a news release the Commission said that it had reviewed the terms of the Indemnity Act and its powers and obligations under the TJRC Act.

The Commission takes the position that the Indemnity Act does not and will not affect its ability to fulfil its mandate of investigating all violations of human rights committed throughout the entire country of Kenya.

These include  those violations that occurred between 1963 and 1967 in the areas covered by the Indemnity Act (North-Eastern Province, and the Isiolo, Marsabit, Tana River, and Lamu Districts), Commissioner Prof Ronald Slye said.

In addition Chairman Ambassador  Bethuel  Kiplagat revealed that the Commission met on Monday to discuss the Indemnity Act and current efforts in Parliament to have it repealed. 

“The Commission was unanimous in concluding that  as a body dedicated to justice for all Kenyans, it unreservedly and wholeheartedly supported efforts by Members of Parliament to repeal the Indemnity Act.”

Prof Slye elaborated “ even though the Indemnity Act does not affect us, we add our voice to those who say it should be repealed.”

He pointed out that the Indemnity Act did  not bar  the TJRC from:

i)Inquiring into, investigating, analyzing, or making recommendations with respect to human rights violations that happened in the areas during the period covered by the Indemnity Act;

ii) Recommending reparations for harm suffered as a result of said violations;

iii) Identifying perpetrators of said violations; and

iv) Recommending prosecution of any alleged perpetrators

He explained that the Truth, Justice and Reconciliation Act of 2008, as amended, clearly required that the TJRC look at all violations of human rights that occurred between 12 December 1963 and 28 February 2008. 

“Under basic principles of statutory construction, when two pieces of legislation cover the same issue and are in conflict, the later legislation is the operational law unless the later legislation makes clear that the earlier legislation is still to apply.  Parliament chose not to subject the TJRC to the Indemnity Act and made clear that the TJRC is to establish a complete historical record of violations during the entire mandate period, including the period covered by the Indemnity Act,” Prof Slye added.
 
He noted that even by its own terms, the Indemnity Act did not apply to the mandate of the TJRC as it specifically stated that its provisions did not prevent “the institution…of proceedings on behalf of the Government.” (Indemnity Act, Art. 4). 

“In creating the TJRC, the Government instituted proceedings on its own behalf.  Thus even by its own terms, the Indemnity Act does not apply to anything undertaken by the TJRC,” he said. 

Prof Slye said the TJRC was required to look at violations of fundamental human rights, including summary executions, sexual violence, and other atrocities. 

“Such acts clearly violate both Kenyan and international law and thus by definition cannot be undertaken in good faith. 

The Indemnity Act specifically applies only to those acts done in good faith in furtherance of the public interest,” he said.