Kenya: Why we reject the TJRC as formed and composed

SEEKING SUPPORT FROM ALL TO FIGHT THE WAR AGAINST IMPUNITY

Introduction

In Africa, Kenya is one of the countries where impunity appears to be taking toll and the management of public affairs is being decided by a tight clique within the executive. Very serious public appointments meant to move the reform agenda forward and ensure social-political and economic justice are being circumvented by a few, to retain the status quo, be it in the commissions of inquiry, police force, anti-corruption initiatives among others. The parliament, being the representative house of the people has not taken its work serious in terms of making watertight laws.

Impunity has now become the order of the day even where public outcries are outwardly seen and explosive. The don’t care attitude of senior public officers is leaving a lot to be desired on the path the country is taking, even with the grand coalition government that was meant to be the best government to serve Kenyans. Public outcries and opinions are being shunned.

However, all is not lost. Proactively Kenyans are taking actions. For instance there have been concerns on the reasons why Kenyans Against Impunity (KAI) vehemently reject the TJRC as formed and composed.

Historically Kenya has been riddled with gross violations of human rights. Of course these violations had victims and survivors, many of whom have lived to tell. We also do acknowledge and appreciate the role many Kenyans have played in ensuring that the country gets democratized based on principles and values of human rights and good governance.

To enhance this process, we note that among the agreed issues on Agenda No. 4 was the formation of a credible, independent and impartial Truth, Justice and Reconciliation Commission (TJRC) to look into past violations of human rights and injustices.

Of course the victims and survivors of human rights violations in Kenya have since 1994 pushed for the establishment of the TJRC, but successive governments never saw it fit to do so, until after the chaos that followed the 2007 elections. Although delayed, the Truth, Justice and Reconciliation Act of 2008 has since been enacted but it is full of flaws.

As victims of human rights violations, we strongly feel that the individuals to be selected to the TJRC should have been subjected to a rigorous vetting by the public, and specifically so by the victims of gross violations of human rights and all concerned Kenyans.

Here below we present the reasons why KAI rejects the TJRC as formed and composed:-

· Section 10 of the TJR Act of 2008 states that, “no person shall be qualified for appointment as a commissioner unless such a person ………is of good character and integrity; has not in any way been involved, implicated, linked or associated with the perpetrators or supporters of the acts, crimes or conduct under investigations; shall be impartial in the performance of the function of the Commission under this Act and who will generally enjoy the confidence of the people of Kenya”.
· The Chairperson, Ambassador Bethwel Kiplagat was a Permanent Secretary twice and an Ambassador in former President Moi’s government, which committed almost 60% of the gross violations of human rights which the TJRC is supposed to investigate and address. He was a senior government official between 1980 and 1990 when these gross violations of human rights occurred. The Chairperson therefore has burdens of violations on his shoulders in all forms one looks at the issues.
· All the other commissioners are relatives and or close associates of members of the cabinet and therefore are neither fit nor the right persons to be Chairperson or Commissioners to the TJRC due to obvious conflicts of interests.
· Many of those named to the Commission ought to be either witnesses in the TJRC hearings or subjects of investigations for their conduct during the period in focus.
· As constituted now, the TJRC seems meant to cover up the same truth, justice, peace and reconciliation being sought by Kenyans for all the commissioners go against Section 10 as pointed above in point 1.
· Further while the Kenyan law requires that official appointment be published in the Kenya Gazette, this was not done in this particular Commission. Kenyans ought to ask why such anomaly?
· The Chief Justice who is the interpreter of the law, administered oath of office to strangers and or friends who were not gazetted to be Commissioners in accordance with the law. Where is the rule of law in Kenya?
· Sec. 6 of the First Schedule of the TJR Act of 2008 provides for the appointment of four Kenyans as Commissioners to the TJRC not six! We wonder, was the TJRC meant to give jobs to friends or relatives of the Executive or to help Kenyans rewrite their history based on the truth for justice and reconciliation to take place?
· The TJR Act is replete with lacuna in that Section 17 (4) does not exist yet it is referred to for the removal of Commissioners as per the proviso in Section 9.
· The law leaves out a very important period in the Kenyan history! The pre-colonial period yet we have many Kenyans who suffered under the colonial government and also want to tell their story for the nation to know its roots, injustices and seek redress for justice to be seen to be done. Who will address the plight of the colonial human rights violations?

We know that Kenya is a strategic country for many competing interests. Though weakly formed and composed the TJRC is being supported by some of these interests. It was supported even before Kenyans could know and make comments on who were in the Commission. It is no wonder therefore the drafting of the TJR Act of 2008 remained a mystery to many Kenyans up to the end where some of these lacunae’s could have been noted and corrected!

While our argument here only involves the six commissioners selected from the Kenyan short list, the efficacy of the other three selected by the Panel of Eminent African Personalities is outside the knowledge of the Kenyan society. For us, it is important that these three have their CVs made public to know who they are and their backgrounds for matters of the Truth, Justice and Reconciliation of our country cannot be circumvented yet again.

As the victims, we totally reject the composition of TJRC as it is currently constituted. We are concerned that the executive, the parliament and the Chief Justice embraced a contradictory and conflicting Act, a legal instrument that gives life to such an important national exercise and commission.

Our demands
a) That the Commission be suspended until the Truth, Justice and Reconciliation Act of 2008 is amended and its provisions synchronized.

b) That the appointment of properly qualified persons, scrutinized by the people of Kenya and mostly the victims be made, in order for the country to avoid a process that will be a sham and a whitewash.

c) That Kenyans stand firm and speak out against this extension of impunity through a very touchy issue around key principles of democracy and human rights like the truth, justice, rule of law, peace and reconciliation for the nation’s governance and development.

d) That we all fight IMPUNITY in all its manifestations now.

Conclusion
We reiterate our total rejection of both the TJRC in its present form and the embodying Act and warn everyone that if the process and the commission as constituted are allowed to proceed, Kenya will end up with worse chaos and mayhem than was witnessed after the 2007 elections.

It is time the nation commits itself to the principles and values of human rights, democracy and open governance in words, actions and practices, to correct its past, deal with its present and design its future with objectivity and impartiality.

NB; The case against the TJRC is being heard on 8th September 2009, 9am at the High Court, Nairobi. Welcome all we join hands for a good and worthy course!!

Prepared by
Stephen Musau
Executive Coordinator, RPP

For and on behalf of Kenyans Against Impunity
Email: musausteve or rpprights