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Truth Commission Bill flawed, watchdog

LONDON, May 15 – Kenya’s draft Bill to establish a Truth, Justice and Reconciliation Commission is flawed and should be amended, an international human rights watchdog said on Thursday.

Human Rights Watch urged Parliament to revise the Bill before it becomes law.

"The national dialogue and reconciliation process was supposed to create institutions that can address Kenya’s historical injustices and bring criminals to book for their crimes," said Georgette Gagnon, Africa director at Human Rights Watch. "But as currently drafted, the commission has serious flaws that must be urgently addressed by parliament, especially its amnesty provisions."

If the contradictions in the draft Bill are not resolved, the Truth, Justice and Reconciliation Commission (TJRC) could fail to contribute to or even undermine the justice which Kenya so badly needs, said in a statement.

The Parliament should take time to reflect on the bill and amend it to rectify the flaws rather than passing it into law with undue haste.

The organisation has urged Parliament to address the issues in the committee stages of revising the Bill.

They note that the amnesty provisions as proposed in the legislation are inconsistent with Kenya’s obligations under international law, which rejects impunity for serious crimes, such as genocide, war crimes, crimes against humanity, and torture.

“International treaties, including the UN Convention against Torture, the Geneva Conventions, and the Rome Statute of the International Criminal Court, require parties to ensure alleged perpetrators of serious crimes are prosecuted. Kenya has ratified each of these in addition to numerous other human rights treaties,” the statement said.

They also allege that although the draft law states that the TJRC will not grant amnesty for "crimes against humanity or genocide within the meaning of international human rights law," it does not mention war crimes or acts of torture not amounting to crimes against humanity.

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HRW has proposed that the bill should provide that the TJRC comply with established international human rights law and should clearly exclude amnesty for genocide, crimes against humanity, war crimes, and torture. The bill should also make perpetrators of crimes of sexual violence ineligible for amnesty.

The organization also said the independence of the commission was severely compromised in the current draft.

“Article 40 gives the Minister of Justice and Constitutional Affairs the power to scrutinize and approve the commission’s expenses, allowances, and budget. This provision effectively gives the government control over the activities of the commission,” the statement said.

“Article 23 of the draft bill gives witnesses immunity, but Article 3 says the commission is a legal body that can sue and be sued. The commission should be given immunity from being sued for its actions as a court to prevent it being obstructed by spurious lawsuits”.

They also said the draft bill gives the commission only two years to address all forms of historical injustices, including corruption, land issues, and reparations for victims. This array of injustices is very wide.

“It would be better if the commission was given a much longer life, or perhaps the scope of its investigations was reduced, for example with land and compensation issues being dealt with separately,” said Gagnon.

"If the proposed Truth, Justice and Reconciliation Commission is to achieve its ambitious goals and not simply become another whitewash, the loopholes in its mandate must be closed by Parliament."

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