Friday, July 24, 2009

Truth Commission Created in Kenya

On 22 July 2009, the Kenyan President Mwai Kibaki has named a nine-person Truth Justice and Reconciliation Commission (TJRC) established under the Truth Justice and Reconciliation Act 2008. The Commission is apart of a bundle of reform measures (Agenda Four) agreed upon between the President 's Party and Prime Minister Raila Odinga's party after the disputed presidential elections of December 27, 2007. The violence claimed close to 1300 lives, billions worth of property destroyed and 500,000 people displaced.

The TJRC is mandated to inquire into historical injustices since 1963: gross human rights violations, abuse of power, corruption and economic crimes. A commission established to probe the post electoral violence recommended the creation of a Special Tribunal for Kenya (STK) to try those who bear the greatest responsibility for crimes against humanity allegedly committed during that period (Dec 27 2007 - Feb 28, 2008 when the National Accord was signed between Kibaki and Odinga to establish a Government of National Unity).

With the Prosecutor of the International Criminal Court (ICC) watching developments in Kenya, the government is divided on what should be done: whether the STK should be established or not; whether crimes should be tried before ordinary criminal courts in Kenya; whether in fact there should be no trials at all and the TJRC deployed instead. The appointment of the TJRC Commissioners came amid this rancorous debate in Cabinet. The question is whether the President sees the TJRC as the answer for calls for prosecutions either in Kenya or in The Hague at the ICC. If crimes committed during the post electoral violence amount to crimes against humanity, there is an imperative that trials be staged, at least in respect of the most responsible individuals. I say if because this question remains to be answered. While there is an assumption that such an international crime was committed, there seems to be no evidence in the public realm to back it up. The Waki Commission that recommended the establishment of the STK or ICC involvement and named several individuals (in a secret list recently handed over to the ICC by Koffi Annan) did not interrogate this issue at all. Reports by a number of civil society organizations (CSOs) and the Kenya National Commission on Human Rights are unhelpful on this issue.

It remains to be seen how this issue evolves. The relationship between the TJRC, STK and national courts is yet to be clarified in any detail although the STK's mandate will be limited to the post electoral violence.What seems sure is that the TJRC has an important role to play in at least shedding light on Kenya's troubled history.

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