Restorative Justice Fund not created 3 years after directive

March 19, 2018 3:48 pm
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The Kenya National Commission on Human Rights (KNCHR) on Monday observed that delays in setting up the Restorative Justice Fund had hindered settlement of reparation claims/FILE

, NAIROBI, Kenya, Mar 19 – A Restorative Justice Fund is yet to materialize three years after President Uhuru Kenyatta ordered its establishment to compensate victims of past injustices.

President Kenyatta had ordered establishment of the fund in his 2015 State of the Nation Address.

“I have instructed the Treasury to establish a fund of Sh10 billion over the next three years to be used for restorative justice,” President announced during the address.

The Head of State who issued an apology for historical injustices including the Wagalla massacre noted the importance of the reparation fund in helping the nation heal from misdeeds of past regimes.

“This will provide a measure of relief and will underscore my government’s goodwill,” he said while urging lawmakers to expedite processing of the Truth Justice and Reconciliation Commission (TJRC) report, seen as critical in the formulation of a reparation framework.

The Kenya National Commission on Human Rights (KNCHR) on Monday observed that delays in setting up the Restorative Justice Fund had hindered settlement of reparation claims, urging the government to speed up its formation.

KNCHR Chairperson Kagwiria Mbogori told Capital FM News when she issued the commission’s State of Human Rights and Fundamental Freedoms Address that non-establishment of the fund continues to drag the national healing agenda.

“We have not ceased to follow up on reparations for victims of torture and violence. Unfortunately, that is yet to happen because the fund is yet to be established,” she said.

Mbogori said KNCHR had partnered with other agencies in efforts to facilitate the legal framework required for the establishment of the fund.

“The collaborating actors – ourselves included – have contributed to drafting regulations that would operationalize such a fund. Some work has gone on but without the actual money then payments cannot be done,” she explained.

Attorney General Githu Muigai had on March 24 last year attributed delays in setting up the reparation fund to lengthy and convoluted bureaucratic processes.

“I must take some responsibility including my colleagues at the Treasury because what followed was a bureaucratic process in which there was lack of clarity on where the funds would be placed and how they would be administered,” Muigai said during an event to mark the International Day for the Right to Truth concerning gross human rights violations and dignity of victims.

According to the outgoing AG, the government had experienced challenges in meeting obligations relating to judgments, mediation or arbitration orders owing to the manner in which such funds were claimed by different government dockets in the past.

“What has happened is that the ministry involved in a particular case, say the Interior would itself go to The Treasury, receive the funding, and send the money to the AG then to the Solicitor General then the money would be disbursed. Unfortunately, that system has been extremely inefficient and unjust,” he pointed out.

To eliminate challenges in processing reparation claims, Muigai had indicated that the fund would be centralized with the National Treasury after which at least Sh1 billion would be released annually to settle reparation claims.

“The draft Public Finance Management Reparation for Historical Injustices Fund Regulations 2017 will implement the framework proposed by the Truth Justice and Reconciliation Commission,” he revealed.

While the amount of money owned by the State in reparation claims is not clear, a former Nyayo torture chambers victim, Kang’ethe Mungai, told Capital FM News in March 2017 that a bulk of court-sanctioned payments had not been made, saying only Sh300 million had been paid.

“We took former President Daniel Moi to court and finally I was paid Sh6 million but quite a number are yet to be paid,” he said.

Mungai, a former coordinator of People Against Torture (PAT) said only a handful of victims had been paid their claims.

“It has been very difficult but luckily some have been paid despite resistance from government and also our own lawyers sometimes taking the money and refusing to pay,” Mungai said on the sidelines of the International Day for the Right to Truth concerning gross human rights violations and dignity of victims.

Mungai was among victims of past injustices who appeared before the TJRC in February 2012 to give an account of experiences they underwent during the KANU regime over their involvement in a group popularly known as Mwakenya – Muungano wa Wazalendo wa Kuikomboa Kenya (Coalition of Patriots for Liberation of Kenya) – which the government had labelled as “dangerous and subversive.”

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