JOHN HARRINGTON NDETA
The Truth Justice and Reconciliation Commission (TJRC) tenure has come to an end and Kenyans are awaiting its final report and recommendations as spelled out in the TJRC Act 2009.
The commission, which was charged with the duty of unearthing truths about historical injustices, recommending justice mechanisms and fostering reconciliation amongst the warring Kenyan communities had a herculean task indeed.
TJRC in the Kenyan context encapsulates the concept of Transitional Justice which is an internationally accepted mechanism for addressing past human rights violations while allowing nations and their people to move forward towards sustainable peace and reconciliation.
States are obligated to offer prompt and appropriate remedies to victims of gross violation of human rights and humanitarian laws by ensuring truth, justice, reparations and reconciliation.
Let us examine these four tenets of transitional justice which Kenyans should use as a parameter with which they will assess the TJRC report. First, the right of individuals to know the truth about mass atrocities and violations, and the reasons and circumstances within which they occurred must be evident in the TJRC report.
This is a critical component of any transitional efforts that seek to address past abuses and guarantee their non-repetition.
Second, the right to justice which entails investigating past violations and, if enough admissible evidence is gathered, prosecution of the suspected perpetrators is expected.
Third, the right to reparations which entails creating initiatives to restore and foster the human dignity and development of the victims is paramount in the report that is due this Month. This helps in banishing the culture of impunity through such programmes as restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Finally, and though not explicitly captured as a rights issues, victims and suspected perpetrated are expected to engage in reconciliation which requires reconstructing state institutions and citizens’ attitudes towards genuine healing, integration and development in the society. This makes the thrust of my focus today.
On March 4, 2008 when the National Dialogue and Reconciliation Committee, popularly known as the Serena Group signed an agreement on the establishment of a TJRC in Kenya, the road was set for what had been projected to start off in 2005 to roll out.
The Truth Justice and Reconciliation Commission (TJRC) were established in August 2009 through the enactment of the Truth Justice and Reconciliation Act in March 2009.
The resultant Commission was expected to complete its task on November 2011 and hand over its report to the Ministry of Justice and National Cohesion for action.
Article 5(g) of the TJRC Act provides one of the objectives of the TJRC as: “to promote peace, justice, national unity, healing, and reconciliation among the people of Kenya through – providing victims, perpetrators, and the general public with a platform for non-retributive truth telling that charts a new moral vision and seeks to create a value based society for all Kenyans.”
Articles 5(h) and 5(j) seek to provide victims and perpetrators with a platform to be heard; restore their dignity and confess their actions as a way of bringing reconciliation.
Overall, TJRC was expected to provide a platform for non-retributive truth-telling that provides victims with a forum to be heard and restore their dignity, and repentant perpetrators with a forum to confess their actions hence foster peace and healing amongst Kenyans.
If attained, reconciliation is going to be a major tool for political, economic and social healing in Kenya. Past efforts at reconciling Kenyan communities have been erratic due to lack of proper national guidelines on reconciliation.
Kenyans are a forgiving people and all that is needed is a framework of reconciliation. The Commission needs to provide a reconciliation guideline to influence the healing process across the country.
Let us remember that Kenyans are sceptical of commissions in the country because their recommendations are seldom implemented, particularly if they are not palatable to those seeking to whitewash injustices, and who are, most often, leaders in positions of authority.
For meaningful reconciliation to take place, all parties to the conflict must be central in all efforts to make and maintain peace. The victims must acknowledge equality with and concede humanity to their former oppressors, torturers and killers of their children, parents, spouses, brothers and sisters.
But Transitional Justice involves fair trial and punishment of those responsible, so that wrongs are corrected and justice is done. This can be difficult, and can put at risk the whole peace process. It must be carried out in a spirit of honesty and forgiveness rather than revenge. The intention is formal public acknowledgement of international crime, rather than to inflict harsh punishments.
Reconciliation is about healing and is based on the understanding that violent conflicts damages relationships between people and groups, and damages the sense of wholeness, which a community needs.
The Writer is Knowledge Management Officer – PeaceNet Kenya