Unfortunately, just as it is beginning its important work it is obvious that the Kenyan Truth Justice and Reconciliation Commission is suffering a real crisis of public confidence because of some of its Commissioners’ antecedents, and because we are arguing Parliament dropped the ball in the vetting and confirmation process. This crisis will affect Kenyans’ belief in transitional justice and turn many into cynics. It is time to recognise that as Freeman and Hayner of the International Center for Transitional Justice wrote “perhaps more than any other single factor, the persons selected to manage a truth commission will determine its ultimate success or failure.”
Bethuel Kiplagat, the Chairman, and his fellow Commissioners of the Truth Justice and Reconciliation Commission are losing public trust in important quarters. Several prominent victims of past human rights violations and organised groups have raised issue with the composition of the Kenyan Truth Justice and Reconciliation Commission. Some have gone to court. The first sessions of the Truth Commission have been disrupted on two occasions this past week. Other prominent victims have vowed never to appear before the Truth Commission as presently constituted. How will the Truth be known in such an environment? How will we get to Justice and Reconciliation?
Protest against its composition erupted even before the Truth Commission was sworn in. The Chairman Mr. Kiplagat was even constrained to go on television before being sworn in to mount a defence to the accusations against him. When the constitution of a Truth Commission is as controversial as that of the Kenyan Truth Justice and Reconciliation Commission, it is logical to look back at how the Commissioners were appointed. As is typical in Kenya what should be a simple exercise of looking at the nomination process is easier said than done because the Report of the Parliamentary Committee which approved the final shortlist from which President Kibaki chose the Truth Commissioners is not a public document. It is not available for example on Parliament’s website. The proceedings of the Selection Panel which gave Parliament names to look at were not conducted in, nor have they been made, public. So Kenyans have to take at face value what they are being told reportedly – that the process was open and consultative. Or maybe they don’t.
Whereas defenders of the Truth Commission membership (including the Minister for Justice Mutula Kilonzo and Ababu Namwamba) say that the appointment followed a consultative process, presumably at the level of the statutory selection panel, the Hansard of Parliament shows that Kenyan Members of Parliament didn’t spend more than a few minutes considering the report on the nominees to this important Agenda 4 institution.
What transpired in Parliament that day comprised of superficial assessment of the report and generalised praise for every name proposed.This cursory vetting by Parliament explains why Bethuel Kiplagat’s Commission now finds itself attacked for some of its members’ past roles in the subject matter they will be taking evidence from Kenyans on.
It’s a bad start for a process that was never likely to succeed in achieving truth, justice and reconciliation. Such forms of transitional justice are usually successful after regime changes and new democratic dispenstions. It is never wise to place transitional justice institutions in the hands of members of the ancien regime. It was always going to be difficult, but surely not impossible, to find Kenyans of sufficient credibility and stature who could serve as Commissioners of a credible unchallengeable Truth Commission. It was always going to be easier to ignore the instinct for self-interest, self-preservation and the temptation to cover-up human rights violations. But the easy way, as in this Kenyan case, often becomes the rigged or the foolhardy path. The persons who selected Ambassador Kiplagat as Chairman of the Truth Commission presumably knew what they were doing but history will always demonstrate that ancien regime actors do not make the best transitional justice mid-wives. Whatever their reasons, personal or ideological, those who appointed the Kenyan Truth Commission have damaged the prospects of the Commission’s success terminally.
We go on record to say that we are concerned about the credibility deficit of the Chairman and a couple of other commissioners of the Truth Justice and Reconciliation Commission. The situation is deteriorating to the extent that even television straw polls now show that no sensible Kenyan is likely to believe in Truth, Justice or Reconciliation delivered by processes such as the Truth Commission headed by a retired public officer, whose career apex coincides with the height of gross human rights violations, and who spent this part of his career publicly denying that such violations were occurring. Ambassador Kiplagat is known for his diplomatic sense. Surely he can see that ‘toughing this one out’ is not an option? Gentlemen resign when their ability to deliver is questioned by the intended beneficiaries of their work. This is not an admission. It is recognizing that the point of the Truth Commission is to heal victims; to restore their dignity not to irritate them; definitely not to cause any Kenyan victim or otherwise unnecessary agitation. The healing work of the Commission is not severable. Just because not every single category of victim is complaining doesn’t mean your mandate is sound. Don’t demand that a tribunal be constituted against you under section 17 of the Truth Justice Reconciliation Act. Do the right thing Ambassador Kiplagat. Quit for Kenya.
We think that Parliament should, and really could, have done more enquiring for Kenyans. It could have, and should have delayed its adjournment in late June for at least a week to show Kenyans they were serious about who would sit on the Truth Commission. This was, after all, the very last business of the entire parliamentary session and the key work MPs were required to do was to ensure implementation of the letter and the spirit of the Truth, Justice and Reconciliation Act 2008 and make it possible to provide a free and reconciliatory forum to enable all interested victims and Kenyans generally to deal with past injustices. Just how inadequate the prior scrutiny of the members of the Truth Justice and Reconciliation Commission was, is demonstrated by this complete record of the debate that preceded the appointment of the Kenyan Truth Justice and Reconciliation Commission last year. It doesn’t inspire confidence in Parliament as a vetting institution. Had there been a full debate in Parliament would Kenya have a more credible version of a Truth Commission? We think it would.
Thursday, 25th June, 2009
The House met at 2.30 p.m.
[Mr. Speaker in the Chair]
ADOPTION OF REPORT ON NOMINATION OF COMMISSIONERS TO THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
Mr. Abdikadir: Mr. Deputy Speaker, Sir, I beg to move the following Motion:-
THAT, this House adopts the Report of the Departmental Committee on
Justice and Legal Affairs on the Nomination of Commissioners to the Truth,
Justice and Reconciliation Commission laid on the Table of the House on
Thursday, May, 28, 2009.
Mr. Deputy Speaker, Sir, the Truth, Justice and Reconciliation Act, 2008 is an Act of Parliament to provide for the establishment of the Truth, Justice and Reconciliation Commission and for connected purposes. Vide Part II of the Act, the establishment, powers and functions of the Commission are set out. The membership of the Commission is stipulated in the provisions of Section 10.
The mandate of the Committee was to nominate nine persons for appointment to the Commission pursuant to the provisions of the Act. The Act, indeed, provides for a selection panel made up of nine members, including those listed in the Report. The Committee received the Report from the Selection Panel which they did after advertising and interviewing numerous people who intended to serve in this Commission. The Committee observed that in accordance with the Truth, Justice and Reconciliation Commission Act, the Selection Panel had invited applications from persons to be nominated as Commissioners. It considered the applications, ranked them and provided comments regarding each of the finalists to the Kenya National Assembly.
In accordance with the law, the Selection Panel sent a list of 15 qualified Kenyans. In keeping with the provisions of the law, the Committee selected nine persons for nomination, taking into consideration the requirements as set out under the provisions.
My Committee thereafter, resolved to nominate the following for appointment as Commissioners:-
(1) Amb. Bethuel Kiplagat, MBS,
(2) Mr. Thomas Letangule,
(3) Miss Margaret Chava,
(4) Mr. Tom Ojienda,
(5) Rev. Dr. Timothy Njoya,
(6) Miss Betty Murungi,
(7) Mr. Abubakar Zein,
(8) Miss Tekla Namachanja,
(9) Maj-Gen. (Rtd.) Ahmed Sheikh.
Mr. Deputy Speaker., Sir, the Committee further noted the names in the minutes forwarded by the Eminent African Personalities as follows:-
(1) Miss Gertrude Chawatama from Zambia,
(2) Mr. Berhanu Dinka from Ethiopia,
(3) Mr. Ronald Sly from the United States of America (USA).
It is, therefore, the recommendation of the Committee that the people mentioned above be, indeed, nominated to be Commissioners to the Truth, Justice and Reconciliation Commission (TJRC). The law requires that the names, once approved, be sent to the President, and the President will pick six out of the nine nominees, if approved by this House.
Mr. Deputy Speaker, Sir, on behalf of the Members of the Departmental Committee on Administration of Justice and Legal Affairs, I wish to present to the House the Report of the Committee and the names of the nine qualified candidates, and the names of the three nominees nominated by the Panel of Eminent African Personalities for further consideration and subsequent adoption by the House.
With those remarks, I beg to move and ask Mr. Njoroge Baiya to second the Motion.
Mr. Baiya: Thank you, Mr. Speaker, Sir. I can confirm that this Report has received full deliberation of the Departmental Committee on Administration of Justice and Legal Affairs, and that the whole process was as explained by the Chairman. We are very clear that if this team receives the approval of the House, and also the approval of the President, it will deliver to the expectations of Kenyans.
Mr. Deputy Speaker, Sir, with those remarks, I beg to second.
The Minister for Justice, National Cohesion and Constitutional Affairs (Mr. M. Kilonzo): Mr. Deputy Speaker, Sir, I would like to take this opportunity to thank you for giving me this chance to, first of all, congratulate the Committee and all its Members.
I would also like to take this opportunity to congratulate the Selection Panel and the Serena Team as well as the National Accord Implementation Committee for the work that has been put into this process of national healing.
These proposed Commissioners are very important. I want to assure the House that my Ministry will go out of its way to ensure that we make it possible for them to do the work that they are expected to do as expeditiously as possible, for purposes of national healing.
Mr. Deputy Speaker, Sir, this is a very special year for this country, when we are grappling with very many issues, including Agenda Four, and above all, a new constitutional order. I beg to support this Motion and urge hon. Members to support it because it will go a long way towards the realization of this country of the nationhood that it so desperately needs.
I beg to support.
The Minister for Nairobi Metropolitan Development (Mr. Githae): Thank you, Mr. Deputy Speaker, Sir, for this opportunity. I stand here to support this Motion that we should approve these names. I wish to take this opportunity to thank the committee for a job well done. I wish to thank the selection panel which was composed of various stakeholders; that is, FIDA, Kenya National Commission on Human Rights (KNCHR), Law Society of Kenya(LSK), Kenya Private Sector Alliance (KEPSA), SUPKEM, Hindu Council of Kenya, COTU and Kenya Medical Association, for a job well done.
I have looked at the names of the proposed commissioners. I have no doubt that Amb. Bethwel Kiplagat, Mr. Thomas, Letangule, Margaret Shava, Tom Ojienda, Rev. Timothy Njoya, Ms. Betty Murungi, Abubakar Zein, Ms. Tekla Namachanja and Maj-Gen. Rtd Ahmed Sheikh, will do a good job. Even the people appointed by the panel of eminent persons, these are: Getrude Chawatamu from Zambia, Mr. BerhanuDinka from Ethiopia and Mr. Ronald Sly from the United States of America, will do a good job.
This Commission should have been appointed yesterday, so that it can go into all these causes like what happened after the elections, who brought about the chaos—
Where people confess to the crimes they did, then there should be a provision for giving them some kind of immunity.
With those words, I support.
Mr. Ruteere: Mr. Deputy Speaker, Sir, since there is consensus that we accept these names, am I in order to request that the Mover be called upon to reply?
Mr. Deputy Speaker: If that is the mood of the House, let the Mover reply.
Mr. Abdikadir: Mr. Deputy Speaker, Sir, I beg to move.
(Question put and agreed to)
MOTION FOR ADJOURNMENT
Background to the Truth Justice and Reconciliation Commission: Kenya has a history of political violence and gross human rights violations dating back to its Independence from Britain in December 1963. Documented violations include political assassinations, extra judicial executions of civilians, collective punishment and torture of minority populations, massacres by security forces including the army, torture of persons in custody, enforced disappearances and ethnic cleansing. For 39 years the KANU party ruled Kenyans and controlled government. Following the defeat of the KANU party in December 2002, the new coalition government headed by Mwai Kibaki commissioned an inquiry into policy actions to deal with past gross violations of human rights.
In August 2003, the Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation
Commission chaired by Prof. Makau Mutua was published. It stated that “Kenyans have asked their government to immediately establish a truth, justice, and reconciliation commission. They have overwhelmingly said that the truth about the past must be known, that perpetrators must be identified and punished, that victims must be accorded justice, and that reconciliation is only possible after the truth is known and justice is done. Kenyans want an effective and credible truth commission, an institution that will not engage in a witch-hunt or a whitewash. Such a commission must have the powers to recommend lustration, that is, to bar offenders from holding public office. It must be empowered to recommend redress for victims, such as compensation, restitution, and reparations. It should be authorized to inquire into stolen property and funds, and to recommend that they be returned to the public or the individuals from whom they were stolen. The truth commission should investigate gross human rights violations and economic crimes and recommend prosecutions.”
This important work by the Makau Mutua Task Force was immediately shelved and forgotten. The outrages of the post election violence of 2007-8 created a new impetus for transitional justice and in March 2008, the parties to the Kenya National Dialogue and Reconciliation agreed that a statutory Truth Justice and Reconciliation Commission should be established for a 2 year term and be mandated to inquire into human rights violations, grand corruption and international crimes committed between December 12th 1963 and February 28th 2008. The Truth Justice and Reconciliation Act which established the Kenyan Truth Commission came into effect on March 9th 2008. A Selection Panel conducted interviews and short listed the names of 15 potential Commissioners for Parliamentary approval. The Selection Panel was made up of persons nominated by the Kenya Episcopal Conference, National Council of Churches of Kenya, Evangelical Alliance of Kenya, Hindu Council of Kenya, Seventh Day Adventist Church, Supreme Council of Kenya Muslims, Law Society of Kenya, Federation of Kenya Women Lawyers, Central Organization of Trade Unions, Kenya National Union of Teachers, Association of Professional Societies of East Africa, Kenya National Commission on Human Rights, Kenya Private Sector Alliance, Federation of Kenya Employers, and the Kenya Medical Association. It’s proceedings were not conducted in, nor have they been made, public.
In June 2009 Parliament approved the names of Kenyans and foreign experts for submission to the President to appoint the Commission. President Kibaki appointed the 9 member Commission in July 2009. An annual budgetary allocation of only 100 million shillings meant that in 2009 the Commission hardly made a dent in public consciousness, and it wasn’t until January 2010 that the Commission announced a nationwide public meetings schedule intended to make a preliminary assessment of the historical grievances Kenyans have.