NAIROBI, Kenya, May 21 – The country marked one year on Wednesday since the now defunct Truth, Justice and Reconciliation Commission (TJRC) presented its report to President Uhuru Kenyatta.
A section of civil society organisations however decried what they said was a demonstrated lack of political will to implement its recommendations in contravention of the TJRC Act.
“Although Parliament amended the law to give themselves power to have the report tabled for consideration, there are certain things within the original Act that remain unchanged. One, is the timeline of six months. So the question to be asked is, one year down the line, how come that timeline has not been obeyed?” Human Rights Lawyer Njonjo Mue posed.
But despite the lapsed deadline, the head of the International Centre for Transitional Justice (ICTJ) in Kenya Christopher Gitari said the Executive and National Assembly could still redeem the situation by demonstrating good will as far as reparation for victims of historical injustices is concerned.
“In Kenya already there exists programmes that support vulnerable groups. We have orphan cash transfer programmes; we have programmes that help people with serious physical disability, hunger relief programmes. So already there are mechanisms to draw from and these victims are known. They are in the report,” he said.
The civil society itself, Mue argued, could however not escape blame where the implementation of the TJRC report is concerned.
“We seem to think we’re at the mercy of Parliament or the AG’s timetable because they’ve talked about considering the report but he will never move. So I’m challenging the civil society to take on the AG, to go to court if necessary and to get this process moving.”
“And it would also be good to get the court’s interpretation of the word consideration as amended onto the TJRC Act by Parliament,” he added.
According to the ICTJ and Mue, the opening of a truth report by Parliament for, “consideration,” gave Kenya “a dubious distinction.”
“World over, once an independent commission of enquiry tables its report, it goes to Parliament just for Parliament to take note of it; mainly because government will come back to Parliament for it to vote monies for implementation. But it does not go to Parliament for Parliament to reopen it, to re-examine it and change things they don’t like,” Mue expounded.
Wachira Waheire, one of those who would qualify for reparation according to the TJRC report on account of being a Nyayo House torture victim, has however chosen to go the litigation route as opposed to waiting for the implementation of the TJRC report.
“I lost hope in the report ever bringing me justice. I mean how many reports have been written in this country? All about historical injustices, land or otherwise. And what if anything becomes of them? They’re gathering dust on a shelf somewhere yet there can be no true peace without justice,” he said.
“Just look at the 1992, 1997 and 2008 post-election violence. Just because the violence skipped an election year doesn’t mean anything. Let’s not forget that history has a knack for repeating itself and the only way to truly be rid of a weed is to pull it out from the roots,” he opined.
Obtaining compensation from the courts, High Court Advocate Mbugua Mureithi however cautioned, comes with its own challenges.
“I represent 1982 coup detainees and often the victims of historical injustices lack the resources to mount a formidable case and the threshold of proof of torture is higher than the ‘more likely than not’ required by the TJRC report,” he testified.
And even then, Mureithi added, the lack of political will that hampers the implementation of the TJRC report hampers the pay out, by government, of court awards.
“I have court awards worth Sh100 million sitting in my office for 20 of the 100 detainees I represent that have never been paid out. The Attorney General is quick to call for the payment of the Anglo-leasing monies so why should we have to hound him to honour the directions of the Kenyan courts in making right our betrayal? Isn’t that a violation in itself?” he posed.
Sentiments shared by the legal representative of eight women who claim to have been sexually violated during the 2008 post-election violence, Christine Alai:
“We had to resort to thunderclap, tweeting that the AG doesn’t care about victims of SGBV (Sexual Gender Based Violence) just to get him to respond to our petition,” she said.
And given the demonstrated lack of political will where the implementation of the TJRC report is concerned, Mue said, a thunderclap of sorts may be necessary.
“Let’s hope the glass box in which the TJRC report was presented to President Kenyatta won’t end up being like that glass that’s broken open only in the event of fire,” he concluded.
Attorney General Githu Muigai and the Chairman of the National Assembly’s Justice and Legal Affairs Committee Samuel Chepkonga were unavailable for comment.