Saturday, November 29, 2008



By Alex Ndegwa

President Kibaki has given the green light to establish a Truth, Justice and Reconciliation Commission to probe gross human rights violations.

This sets the stage for Kenyans to publicly confront the atrocities that have threatened the national fabric.

The forum will provide an opportunity to bring closure to the nation’s painful past that boiled over earlier this year and pushed the country to the brink.

The commission is mandated to investigate the root causes of the post-election violence in which over 1,300 people were killed, over 350,000 displaced and property worth billions of shillings destroyed.

On Friday, Kibaki signed into law the Act to provide for the establishment, powers and functions of the commission, according to the Presidential Press Service.

The commission will assess human rights abuses since independence, including the post-election violence that ended with the February 28 peace accord. It will work two years.

It will have nine commissioners—six Kenyans and three foreigners—appointed by the team of Eminent African Personalities headed by former UN Secretary-General Kofi Annan. The team mediated the power-sharing deal that hauled the country out of the crippling post-poll crisis.

The Parliamentary Committee on Administration of Justice and Legal Affairs chaired by Mandera Central MP Abdikadir Mohammed rallied Parliament to amend the Bill to disallow amnesty for gross violations of human rights

Consequently, those found guilty of genocide, extrajudicial killings, sexual violence and other human rights violations will not be eligible for pardon.

But the law permits amnesty for perpetrators of economic crimes and grand corruption who surrender their ill-gotten wealth through restitution. The law has been opposed by the civil society on grounds that it is full of inconsistencies.

In press adverts last month, the group argued the controversial amnesty clause and ambiguities in definitions of crimes the law seeks to address would create a loophole suspects would use to escape prosecution.

But Annan, who chaired the National Dialogue and Reconciliation Talks that gave birth to TJRC as an instrument to deal with past crimes, ruled out amnesty for suspects named in the Waki Report.

The amended law has provisions for victims’ rights. Victims will be consulted on amnesty because the law requires the commission to consider victims’ "reasonable objections to amnesty".


In response to calls to safeguard the country’s sovereignty, local commissioners will dominate the panel to substantially reduce international influence on the commission.

This however means the domestic Selection Panel process becomes more crucial to the success of the commission. The chairperson will now be elected by the commissioners rather than appointed by the president as earlier proposed. The new law subjects the choices of the Panel of eminent African Personalities to the approval of both Parliament and the President.

To strengthen the commission’s capacity to investigate the police, the law was amended thus:

"The police shall, on request being made by the commission, provide the commission with such service and assistance as may be required by the commission."

The team will also consider the reports of the relevant commissions of inquiry such as the Akiwumi report on 90s tribal clashes and the Waki report on post-election violence.

It will make recommendations of the implementation of the reports.

Given the Waki report recommends against amnesty for all but minor offenders, it is unlikely that those found guilty of serious crimes will get amnesty.

The Commission can apply for an extension of up to six months beyond the two years allotted.

To empower the commission, anyone who disobeys its direction of the commission with a jail-term of up to two years or a Sh200, 000 fine.

The provisions of the Official Secrets Act shall not apply to any matter that is the subject of inquiry of the Commission to stop State operatives from hiding under its blanket cover.

This helps assure that the Commission will get access to government document. The findings of the Commission will all be made public.