A Bill for
AN ACT of Parliament to establish a Commission to seek and promote justice, national unity, reconciliation and peace, among the people of Kenya by inquiring into the human rights violations in Kenya and recommending appropriate redress for persons and communities who have suffered injury, hurt, damage, grievance or those who have in any other manner been adversely affected by such acts and omissions.
ENACTED by the Parliament of Kenya, as follows:-
PART 1 – PRELIMINARY
Short title and Commencement. 1. This Act may be cited as the Truth, Justice and Reconciliation Commission Act, 2008.
Interpretation. 2. In this Act, unless the context otherwise requires –
"chairperson" means the Chairperson of the Commission appointed under section 8;
"Commission" means the Truth, Justice and Reconciliation Commission established by section 3;
“Commissioner” mean a Commissioner appointed under section 7;
“enforced disappearance pf persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a state or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
“gross human rights violations” means:
(a) violations of fundamental human rights, including but not limited to acts of torture, killing, abduction and severe ill-treatment of any person;
(b) imprisonment or other severe deprivation of physical liberty;
(c) rape or any other form of sexual violence;
(d) enforced disappearance of persons;
(e) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or gender or other grounds universally recognized as impermissible under international law;
(f) any attempt, conspiracy, incitement, instigation, command, or procurement to commit an act referred to in paragraph (a) and (c),
which was committed during the period 12th December 1963 and 28th February 2008 and the commission of which was advised, planned, directed, commanded or ordered, by any person acting with a political motive;
“Minister” means the Minister responsible for matters relating to justice and constitutional affairs.
“reparation” means dignifying the victims by measures that will alleviate their suffering, compensate their social, moral and material losses, restitute their rights;
“Secretary” means the Secretary appointed under section 16
“Selection Panel” means selection panel of ten persons composed of one member appointed by each of the following: the Law Society of Kenya, Federation of Kenya Women Lawyers, Institute of Certified Public Accountant Accountants of Kenya, Kenya National Commission on Human Rights, Central Organization of Trade Unions, Federation of Kenya Employers, Kenya National Union of Teachers, National Council of Churches of Kenya, Supreme Council of Kenya Muslim, Kenya Private Sector Alliance, and the CJPC;
“victim” includes any person or group of persons, that with the occasion or because of the human rights violation, has suffered any individual or collective damage by acts or omissions that violate the rights established in the Constitution, International Law of Human Rights, in International Humanitarian Law and International Criminal Law, and that is considered a crime in Kenyan legislation.
PART II – ESTABLISHMENT OF COMMISSION
Establishment and membership. 3. (1) There is established a Commission to be known as the Truth, Justice and Reconciliation Commission.
(2) The Commission shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of –
(a) suing and being sued;
(b) taking, purchasing or otherwise acquiring, holding, charging or disposing of movable or immovable property;
(c) borrowing money; and
(d) doing or performing all other things or acts for the furtherance of the provisions of this Act, which may be lawfully done or performed by a body corporate.
(3) The Commission shall have a common seal the use of which shall be authenticated by the signatures of the chairperson and the vice-chairperson or by any other members designated in that behalf by the Commission.
Objectives of Commission. 4. The objectives of the Commission shall be to promote peace, justice, national unity, healing, and reconciliation among the people of Kenya by—
(a) establishing an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by public institutions and holders of public office between 12th December 1963 and 28th February 2008;
(b) establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights and economic rights which were committed during the period from 12th December 1963 and 28th February 2008, including antecedents, circumstances, factors and context of such violations as well as the perspectives of the victims and the motives and perspectives of the persons responsible for commission of the violations, by conducting investigations and holding hearings;
(c) investigating gross human rights violations and violations of international humanitarian law as well as abuses that occurred, including massacres, sexual violations, murder and extra-judicial killings and determining those responsible for the Commission of the violations and abuses;
(d) investigating economic crimes, such as grand corruption and the exploitation of natural or public resources and how they have been dealt with;
(e) inquiring into the irregular and illegal acquisition of public land and making recommendations on how the land can be repossessed or how the cases on such land can be determined;
(f) inquiring and establishing the reality or otherwise of perceived economic marginalization of communities and make recommendations on how to address the marginalization;
(g) inquiring into the misuse of public institutions for political objectives;
(h) inquiring into acts of state repression including torture, cruelty and degrading treatment for political objectives;
(i) inquiring into the causes of political violence before, during and after elections and making recommendations on how to address and prevent future occurrence of the violence;
(j) inquiring into the causes of ethnic tensions and making recommendations on how to promote healing, reconciliation and co-existence among the ethnic communities;
(k) recommending the prosecution of the perpetrators of gross human rights violations that were committed between 12th December 1963 and 28th February 2008;
(l) determining ways and means of redress for victims of gross human rights violations;
(m) facilitating the granting of conditional amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with gross human rights violations and economic crimes and complying with the requirements of this Act;
(n) providing victims, perpetrators and the general public with a platform for non-retributive truth telling that charts a new moral vision and seeks to create a value-based society for all Kenyans;
(o) establishing and making known the fate or whereabouts of victims and by restoring the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims, and by recommending reparations measures in respect of them;
(p) providing victims of human rights abuses and corruption with a forum to be heard and restore their dignity;
(q) providing repentant perpetrators or participants in atrocities with a forum to come clean on their actions as a way of bringing reconciliation.
(r) compiling a report providing as comprehensive an account as possible of the activities and findings of the Commission under paragraphs (a), (b), and (f) and which contains recommendations of measures to prevent the future violations of human rights and economic rights;
(2) Subsection (1) does not limit the power of the Commission to investigate or make recommendations concerning any matter with a view to promoting or achieving justice, national unity and reconciliation within the context of this Act.
Functions of the Commission. 5.The functions of the Commission are to—
(a) investigate violations and abuses of human rights relating to killings, abductions, disappearances, detentions, torture, ill-treatment and expropriation of property suffered by any person within the specified period
(b) investigate the context in which and causes and circumstances under which the violations and abuses occurred and identify the individuals, public institutions, bodies, organizations, public office holders or persons purporting to have acted on behalf of any public body responsible for or involved in the violations and abuses;
(c) identify and specify the victims of the violations and abuses and make appropriate recommendations for redress;
(d) investigate and determine whether or not the violations and abuses were deliberately planned and executed by the state or person referred to in paragraph
(e) conduct investigations relevant to its work and or seek the assistance of the police and any public or private institution, body or person for the purpose of an investigation;
(f) identify any persons who should be prosecuted for being responsible or involved in human rights and economic rights violations and abuses;
(g) investigate violations of economic rights;
(h) investigate and provide redress in respect of crimes of a sexual nature against female victims;
(i) educate and engage the public and give sufficient publicity to its work so as to encourage the public to contribute positively to the achievement of the objectives of the Commission;
(j)investigate any other matter that it considers requires investigation in order to promote and achieve national reconciliation;
(k) make recommendations with regard to—
(i) the policy that should be followed or measures that should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims;
(ii) prosecution of persons responsible for or involved in human rights and economic rights violations and abuses.
(l) make recommendations with regard to the creation of institutions conducive to a stable and fair society and the institutional, administrative and legislative measures that should be taken or introduced in order to prevent the commission of violation of human rights.
Powers of Commission.
6. (1) The Commission shall have all powers generally necessary for the execution of its functions under this Act, and without prejudice to the generality of the foregoing the Commission shall have the power–
(a)to gather, by means it deems appropriate, any information it considers relevant, including requisition of reports, records, documents or any information from any source, including governmental authorities, and to compel the production of such information as and when necessary;
(b)to visit any establishment or place without giving prior notice, and to enter upon any land or premises for any purpose which is material to the fulfillment of the Commission's mandate and in particular, for the purpose of obtaining information or inspecting any property or taking copies of any documents which may be of assistance to the Commission, and for safeguarding any such property or document;
(c)to interview any individual, group or members of organizations or institutions and, at the Commission's discretion, to conduct such interviews, in private;
(d)subject to adequate provision being made to meet his expenses for the purpose, to call upon any person to meet with the Commission or its staff, or to attend a session or hearing of the Commission, and to compel the attendance of any person who fails to respond to a request of the Commission to appear and to answer questions relevant to the subject matter of the session or hearing;
(e)to require that statements be given under oath or affirmation and to administer such oath or affirmation;
(f)to request information from the relevant authorities of a foreign country and to gather information from victims, witnesses, government officials and others in foreign countries;
(g)to summon any public officer to appear in person before it to produce any document, thing or information that may be considered relevant to the function of the Commission;
(h)to issue summonses as it deems necessary in fulfillment of its mandate; and
i)to request and receive police assistance as needed in the enforcement of its powers.
(2) All persons, including members of political parties and officers of the Government shall cooperate with and provide unrestricted access for the Commission and its staff for any purposes necessary in the fulfillment of the Commission's mandate under this Act
(3) Any person who willfully obstructs or otherwise interferes with the Commission or any of its members or officers in the discharge of its functions under this Act, commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings , or imprisonment for a term not exceeding one year or both.
(4) Any public officer who, without lawful cause, fails to appear before the Commission pursuant to any summons by the Commission commits an offence and shall on conviction be liable to a fine not exceeding one hundred thousand shillings, or to imprisonment for a term not exceeding one year or to both.
Constitution of Commission.
7.(1) The Commission shall consist of seven commissioners—
(a)three of whom shall be non citizens and selected by the Panel of Eminent African Personalities; and
NB: Who will convene the Panel of Emminent African Personalities and how?
(b)four of whom shall be citizens of Kenya selected by the Selection Panel in accordance with the procedure prescribed in the Schedule
(2) The members of the Commission shall be appointed by the President after being selected and recommended in accordance with the procedure prescribed in the Schedule.
(3) In selecting persons for appointment as Commissioners, the Selection Panel shall have regard to principle of gender equity.
(4) Subject to subsection (7), of the seven commissioners referred to in subsection(1)—
(a) three shall have knowledge of and at least fifteen years’ experience in matters relating to law;
(b) four shall have knowledge of and experience in human rights and humanitarian law, investigations, psycho- sociology, anthropology and social relations, conflict management, religion or gender issues.
(5)Notwithstanding the provisions of subsection (4), no person shall be qualified for appointment as a Commissioner—
(a) unless such person—
(i) is of sound mind;
(ii) is of good character and integrity; or
(iii) will be impartial in the performance of the functions of the Commission under this Act and who will generally enjoy the confidence of the people of Kenya.
(6)A Commissioner once appointed shall cease active participation in political parties or any other organization, whether registered or otherwise, propagating partisan views with respect to the work of the Commission.
(7)The Commission shall be balanced, representative of Kenyan society, perceived to be impartial in its collectivity and of diverse professional and religious backgrounds.
Chairperson. 8. (1) There shall be a chairperson of the Commission who shall be appointed by the President from amongst the Commissioners appointed under section 7(1) (a).
(2) The chairperson shall, within seven days of the appointment of the Commissioners, convene the first meeting of the Commission at which the Commissioners shall elect the vice-chairperson of the Commission.
(3) The chairperson shall—
(a) preside over all meetings of the Commission;
(b) be the spokesperson for the Commission; and
(c)supervise and direct the work of the Commission:
Vice- Chairperson 9. (1) There shall be a vice-chairperson who shall be elected from amongst the four members appointed under section 7(1) (b).
(2) The vice-chairperson shall in the absence of the chairperson, be the spokes person of the Commission.
Tenure of office of Commissioner. 10. (1) The term of office of a Commissioner shall be from the date of appointment under section 7 and shall, unless the Commissioner resigns under subsection (2) or the office falls vacant earlier owing to any reason specified in subsection (4), terminate on the dissolution of the Commission.
(2)A Commissioner may, at any time after appointment, (3) resign, by notice in writing to the President through the chairperson and the resignation shall take effect within immediately.
(3)The office of a Commissioner shall fall vacant if the Commissioner—
(b) resigns from office;
(c) without reasonable excuse, fails to attend three consecutive meetings of the Commission; or
(d) is by reason of physical or mental infirmity, unable to discharge his duties as a Commissioner; or
(4)The President shall notify every resignation and termination in the Gazette within seven days thereof.
Oath of office 11. (1) The chairperson, the Commissioners and the Secretary shall each make and subscribe to the oath or affirmation set out in the Schedule prior to embarking on the duties of the Commission.
(2) Every oath or affirmation by the chairperson, a
Commissioner or the Secretary shall be—
(a) administered by the Chief justice; and
(b) deposited with the Chief Justice and the Secretary.
Terms and conditions of service of the chairperson and Commissioners.
12. (1) The salaries and allowances payable to, and other terms and conditions of service of the chairperson and the Commissioners shall be such as may be determined by the Minister in consultation with the Treasury.
(2) The salaries and allowances provided for under subsection (1) shall be a charge on the Consolidated Fund.
Removal of Commissioners. 13.(1)Without prejudice to subsection (1), the chairperson or a Commissioner may be removed from office for misbehaviour or misconduct; or, if the Commissioner is convicted of an offence involving moral turpitude but not sentenced to a term of imprisonment, but shall not be removed except in accordance with this section.
(2) A person who wishes to have a Commissioner removed from the Commission may apply for the removal of the Commissioner to the Minister and the chairperson;
(3) Where the affected person is the chairperson the application under subsection (2) shall be made to the Minister and the vice-chairperson.
(4) Where the removal from office of the chairperson or a commissioner arises under subsection (2) - the Minister shall within seven days of receipt of the application convene the Selection Panel, to inquire into the matter and report on the facts to the Minister and recommend whether the chairperson or the Commissioner ought to be removed from office and the Minister shall communicate the recommendations of the Selection Panel to the President.
(5) Where the question of removing the chairperson or a commissioner has been referred to the Selection Panel under subsection (3), the President may suspend the chairperson or the commissioner from the Commission and the suspension may at any time be revoked by the President and shall in any case cease to have effect if the Selection Panel recommends to the President that the chairperson or the Commissioner, as the case may be, should not be removed.
(6) A member of the Commission shall be removed from office if two thirds of the members of the Selection Panel vote to remove the member.
(7) The President may remove a member of the Commission from office on the recommendation of the Selection Panel.
(8) A Commissioner who is appointed in place of a commissioner whose office has become vacant under this section shall hold office for the remainder of the term of office of that commissioner.
14.Where a vacancy occurs in the membership of the Commission as a result of death, disability, resignation or dismissal of a member, the President shall appoint a replacement—
(a) where the vacancy is in respect of a citizen of Kenya, from among the short –listed persons considered by the Selection Panel in accordance with the Schedule, giving due consideration to the rankings and comments of the Selection Panel, if any; and
(b) where the vacancy is in respect of a non-citizen, from a list of persons recommended by the Panel of Eminent African Persons.
Temporary vacancy of office of
15.(1) If the chairperson of the Commission vacates office under section 10 or is removed under section 13, the vice-chairperson shall act as the chairperson until the appointment of a new chairperson or until the Selection Panel recommends that the chairperson should not be removed.
(2) No act or proceedings of the Commission shall be invalid by reason only of a vacancy or defect in the composition of the Commission.
Secretary 16. (l) There shall be a secretary to the Commission who shall be appointed by the Commission on such terms and conditions of service as the Commission may determine.
(2) The Secretary shall serve on a full-time basis.
(3) The Secretary shall be the chief executive of the Commission and shall be responsible to the Commission for the—
(a) day to day administration of the affairs of the Commission;
(b) planning, directing and co-ordination of all studies, research and evaluations to be carried out by the Commission;
(c) recording of the proceedings of the Commission; and
(d) custody of all records and documents of the Commission
(e) management of the assets of the Commission; and
(f) performance of such other duties as may be assigned by the Commission from time to time.
(4) The Secretary shall, unless in any particular case the Commission otherwise directs in writing, attend all meetings of the Commission but shall have no vote on any matter falling to be decided by the Commission at any such meeting.
(5)The Secretary may be removed by the Commission only for –
(a) inability to perform the functions of his office arising out of physical or mental incapacity; or
(b) misbehaviour or misconduct; or
(6)Before the Secretary is removed under subsection (5), he shall be informed of the case against him and shall be given an opportunity to defend himself against any allegations against him.
Staff of the
17. (1) The Commission may appoint such officers and other staff of the Commission as it may consider necessary for the proper performance of its functions under this Act.
(2)The officers and other staff appointed under subsection (1) shall serve on such terms and conditions as the Commission, in consultation with the Treasury, may determine.
(3)The Public Service Commission may, upon the request of the Commission, second thereto such number of public servants as may be necessary for the purposes of the Commission.
(4) A public servant seconded to the Commission under subsection (3) shall, during the period of his secondment, be deemed to be an officer of the Commission and shall be subject only to the direction and control of the Commission.
(5) The Commission may employ experts or consultants to assist the Commission as appropriate as necessary under this Act.
Principal office of the Commission.
18. (1) The principal office and meeting place of the Commission shall be in Nairobi.
(2) Subject to subsection (1) and to any rules made under subsection (4), the Commission shall meet at such times and places as the Commission may deem appropriate.
Inauguration 19. (1) The Commission shall be inaugurated within two weeks of the appointment of its members and shall operate for two years.
(2) Before the commencement of the period of two year specified in subsection (1), the Commission shall have a preparatory period of three months during which it may undertake all tasks necessary to ensure that it is able to work effectively from the commencement of its operations.
(3) The Commission shall, after its inauguration inform the public of its existence and the purpose of its work, and, when appropriate, shall invited all interested parties who may wish to do so, to make statements of submit information to the commission
Independence of the Commission
32. (1) In the performance of its functions under this Act, the Commission shall not be subject to the control or direction of any person or authority.
(2)Each Commissioner and member of the staff of the Commission shall serve in his individual capacity, independent of any political party, government or the other organizational interests, and shall avoid taking any action, which could create an appearance of partiality or otherwise harm the credibility or integrity of the Commission.
Procedure 20. (1) Subject to this section, the Commission shall regulate its own procedure.
(2) The quorum of the Commission shall be four Commissioners at least one of whom shall be a Commissioner appointed under section 7 (1) (a).
(3) All questions before the Commission or a committee thereof shall be determined by consensus, but in the absence of consensus, decisions of the Commission shall be determined by a simple majority of the members present and voting, and the chairman shall have the deciding vote in the event of a tie.
(4) The Commission shall hold such number of meetings in such places, at such times and in such manner as the Commission shall consider necessary for the discharge of its functions under this Act.
(5)The Commission shall cause a record of its proceedings to be kept.
Committees of the
21. The Commission may establish such committees of the commission as it considers necessary for the better performance of its functions under this Act.
Disclosure of information 22. No Commissioner or member of staff of the Commission shall make private use of or profit from any confidential information gained as a result of his work in the Commission or divulge such information to any other person except in the course of his functions as a member of staff of the Commission and any contravention of this provision shall constitute a misconduct.
Commissioners and Secretary. 23. (1) A Commissioner or the Secretary shall not be liable to any civil action or suit for or in respect of any matter or thing done or omitted to be done in good faith as a commissioner or as the Secretary.
(2) No commissioner or secretary shall be liable to arrest under civil process while proceeding to, participating in, or returning from any meeting of the Commission or of any committee thereof.
(3) No person who appears before the Commission shall, whether such appearance is in pursuance of any summons by the Commission under this Act or not, be liable to any criminal or civil proceedings, or to any penalty or forfeiture whatsoever in respect of any evidence or information given to the Commission by such person.
Hearings of the Commission 24. (1) The hearings of the Commission shall be open to the public.
(2) the Commission may in any proceedings before it, direct that proceedings be held in camera and that the public or any particular individual or individuals shall not be present at proceedings or any part therefore if it is satisfied that —
(a) the security of perpetrators, victims or witnesses is deemed to be threatened:
(b) it would be in the interests of justice; or
(c) that there would not be a likelihood that harm may ensue to any person as a result of proceedings being open.
(3) A victim, perpetrator or witness may apply to the Commission for proceedings to be held in camera.
(4) Where the Commission directs that the public or any part thereof shall not be present at any proceedings or part thereof, the Commission may direct that—
(a) no information relating to the proceedings or any part thereof held in camera shall be made public in any manner;
(b) no person may in any manner make public any information, which may reveal the identity of any witnesses in the proceedings;
(c) give such directions in respect of the record of proceedings as maybe necessary to protect the identity of any witness:
Provided that the Commission may authorize the publication of such information as it considers would be just and equitable.
(5) When dealing with victims, the Commission shall be guided by the following principles—
(a) victims shall be treated with compassion and respect for their dignity; they shall be treated equally, without regard to race, ethnicity, religion, language, sex, or nationality; and, procedures dealing with victims shall be expeditious and fair;
(b) appropriate measures shall be taken to minimize inconvenience to victims and, when necessary, to protect their privacy, to ensure their safety and that of their families or witnesses testifying on their behalf; and,
(c) sufficient measures shall be taken to allow victims to communicate in the language of their choice.
Establishment of special units 25. The Commission may establish special units and adopt specific mechanisms and procedures to address the experiences of women, children and vulnerable groups paying particular attention to gender based violations as well as providing opportunities for them to relate their experiences.
Legal representation 26. (1) Any person who has been summoned to appear before the Commission at a hearing of the Commission may be represented by a lawyer.
(2) The Commission may, in order to expedite proceedings, place reasonable limitations with regard to the time allowed in respect of the examination of a witness or any address to the Commission.
PART II — AMNESTY MECHANISMS AND PROCEDURES
Application for granting of amnesty 27. (1) Any person who wishes to apply for amnesty in respect of any act, omission or offence, shall within one month from the date of the an announcement of amnesty by the Commission, or such extended period as may be prescribed, submit such an application to the Commission in the prescribed form.
(2) The Commission shall give priority to persons in custody and shall prescribe measures in respect of such applications after consultation.
Consideration of application for amnesty 28. (1) Upon receipt of any application for amnesty, the Commission may return the application to the applicant and give such directions in respect of the completion and submission of the application as may be necessary or may request the applicant to provide such further particulars as it may deem necessary.
(2) The Commission shall investigate the application and make such enquiries as it may deem necessary:
(3) After an investigation carried out under subsection (2), the Commission may-
(a) inform the applicant that the application does not relate to an act of gross human rights violations;
(b) afford the applicant the opportunity to make a further submission;
(c) refuse the application and inform the applicant accordingly.
(4) If the Commission is satisfied that there is no need for a hearing upon an application and investigation under this section, the Commission shall recommend amnesty and inform the applicant accordingly.
(5) If the Commission conducts a hearing for amnesty upon application under this section, the Commission shall notify the applicant and any victim or person implicated or having an interest in the application, of the hearing and inform the persons of the right to be present at the hearing and testify.
(6) Notwithstanding the provisions of section 29(1), the Commission may consider jointly the individual applications in respect or any particular act, omission or offence to which such applications relate.
(7) If the act or omission which is the subject of an application under section 27constitutes the ground of any claim in civil proceedings instituted against the person who submitted that application, the court hearing that claim may at the request of such person, if it is satisfied that the other parties to such proceedings have been informed of the request and afforded the opportunity to address the court or to make further submissions in this regard, suspend those proceedings pending the consideration and disposal of the application.
(8) If the person who submitted an application under section 18 is charged with any offence constituted by the act or omission to which the application relates, or is standing trial upon a charge of having committed such an offence, the Commission may request the appropriate authority to postpone the proceedings pending the consideration and disposal of the application for amnesty.
(9) Subject to the provisions of section 27,
(a) the applications, documentation in connection therewith, further information and evidence obtained before and during an investigation by the Commission, the deliberations conducted in order to come to a decision or to conduct a hearing contemplated in section 27, shall be confidential.
(b) the confidentiality referred to in paragraph (a) shall lapse when the Commission decides to release such information or when the hearing commences.
Recommendation of amnesty and effect thereof 29. (1) The Commission shall not recommend a blanket amnesty for any violations committed during the period 12th December 1963 to 28th February 2008.
(2) If the Commission, after considering an application for amnesty, is satisfied that-
(a) the application complies with the requirements of this Act:
(b) the act, omission or offence to which the application relates is an act that constitutes gross human rights violation; and
(c) the applicant has made a full disclosure of all relevant facts,
it shall grant amnesty in respect of that act, omission or offence.
(3) Whether a particular act, omission or offence an act of gross human rights violation, shall be decided with reference to the following criteria—
(a) The motive of the person who committed the act, omission or offence;
(b) the context in which the act, omission or offence took place;
(c) the legal and factual nature of the act, omission or offence, including the gravity of the act, omission or offence;
(d) the object or objective of the act, omission of offence, and in particular whether the act, omission or offence was primarily directed at a political opponent or State property or personnel or against private property or individuals;
(e) whether the act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of, the organization, institution, liberation movement or body of which the person who committed the act was a member, an agent or a supporter; and
(f) the relationship between the act, omission of offence and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence to the objective pursued, but does not include any act, omission of offence committed by any person referred to in subsection (2) who acted-
(i) for personal gain:
(ii) out of personal malice, ill-will or spite, directed against the victim of the acts committed.
(5) The Commission shall inform the person concerned and, if possible, any victim, of the decision of the Commission to grant amnesty to such person in respect of a specified act, omission or offence.
(6) The Commission shall Gazette the names of any person to whom amnesty has been recommended, together with sufficient information to identify the act, omission or offence in respect of which amnesty has been recommended.
(7) If any person-
(a) has been charged with and is standing trial in respect of an offence constituted by the act or omission in respect of which amnesty is recommended in terms of this section; or
(b) has been convicted of, and is awaiting the passing of sentence in respect of, or is in custody for the purpose of serving a sentence imposed in respect of, an offence constituted by the act or omission in respect of which amnesty is so recommended,
the Commission shall make recommendations on the action to be taken on the criminal proceeding.
(8) If the Commission has recommended amnesty to any person in respect of any act or omission which formed the ground of a civil judgment which was delivered at any time before the granting of the amnesty, the publication of the recommendation for amnesty under subsection (6) shall not affect the operation of the judgment in so far as it applies to that person.
Refusal of amnesty. 30. (1) If the Commission has refused any application for amnesty, it shall as soon as practicable notify—
(a) the person who applied for amnesty;
(b)any person who is in relation to the act, omission or offence concerned, a victim;
in writing of its decision and the reasons for its refusal.
Reparation and Rehabilitation 31. Where amnesty is recommended to any person in respect of any act, omission or offence and the Commission is of the opinion that a person is a victim in relation to that act, omission or offence, the Commission shall recommend Reparation and Rehabilitation.
PART III — REPARATIONS AND REHABILITATION
Applications for reparation 32. (1) Any person who is of the opinion that he has suffered harm as a result of a gross violation of human rights may apply to the Commission for reparation in the prescribed form.
(2) If upon consideration of any matter or application submitted to it under subsection (1) and any evidence received or obtained by it concerning such matter or application, the Commission is of the opinion that the applicant is a victim, it shall, having regard to criteria as prescribed, make recommendations in an endeavour to restore the human and civil dignity of such victim.
(3)After consideration of an application under subsection (2), the Commission may recommend—
(a) the basis and conditions upon which reparation may be granted;
(b) the authority responsible for the reparation; and
(c) measures that should be taken to grant urgent interim reparation to victims.
(4) The Commission may make regulations to provide for reparation under this Act.
NB: Issues Discussed At The Retreat Can Best Be Dealt With Under Regulations as these are details.
PART 1V— EXPENSES OF THE COMMISSION
Funds and expenses of the Commission 33. (1) The expenses of the Commission incurred in accordance with this Act shall be charged on and issued out of the Consolidated Fund without further appropriation than this Act.
(2) Without prejudice to subsection (1), there may be made to the Commission grants, gifts, donations or bequests towards the achievement of the objects of the Commissions:
(3) Subject to subsection (2), no grant, gift, donation or bequest shall be made on any condition that the Commission perform any function or discharge any duty or obligation other than duties under this Act aimed at achieving the objectives of the Commission.
Fund of the Commission 34. (1) There is established a Fund to be known as the Truth Justice and Reconciliation Fund, which shall be administered, on behalf of the Commission, by the secretary.
(2) There shall be paid into the Fund—
(a) such monies as may be appropriated out of the Consolidated Fund for the purposes of this Act; and
(b) any grants, gifts, donations or bequests received under section 33(2).
(3) There shall be paid out of the Fund all payments in respect of any expenses incurred in pursuance of the provisions of this Act.
(4) The secretary shall, in administering the Fund, consult with the Permanent Secretary to the Treasury and, subject to provisions of the Exchequer and Audit Act, manage the Fund in such manner as promotes the object and purpose of the Commission.
(5) Upon the dissolution of the Commission under section 30, any assets standing to the credit of the Truth Justice and Reconciliation Fund shall, subject to any condition attached to a gift, donation or bequest, be credited to the Consolidated Fund.
Disposal of assets and liabilities on dissolution of Commission 35. Upon the dissolution of the commission under section 42, any assets and liabilities of the Commission, other than the assets specified in section 23(5) shall become assets and liabilities of the Government.
Remuneration and allowances of the Commission 36. The Minister in charge of Finance, in consultation with the Public Minister shall determine the remuneration and allowances of the commissioners and shall scrutinize and approve the budget of the Commission.
Accounts and audit 37. The account of the Commission shall be kept, audited and reported upon to the National Assembly in accordance with section 18 and 19 of the Exchequer and Audit Act.
PART V – REPORT AND RECOMMENDATIONS
Completion of work, report and action thereon. 38. (1) The Commission shall submit a report of its work to the President at the end of its operations.
(2) The report shall summarize the findings of the Commission and shall make recommendations concerning the reforms and other measures, whether legal, political, and administrative or otherwise, needed to achieve the object of the Commission and shall make recommendations for prosecution.
(3) The Commission shall further recommend for amnesty persons who so qualify under terms and conditions and reparations for victims, specific actions of government to be taken in furtherance of its finds, the enactment of specific legislation and legal and governmental reform measures to address specific concerns identified by the Commission and affecting relevant governmental authorities or functionaries.
(3) Immediately upon submitting the report to the President, the Commission shall publish the report in the Gazette and in such other publications as it may consider appropriate and shall, make copies of the report or summaries thereof, widely available to the public in at least three local newspapers of wide circulation.
Implementation of Commission’s report 39. (1) The Government shall, upon the publication of the report of the Commission, establish an implementation Committee to monitor the implementation of the recommendations of the Commission and to facilitate their implementation.
(2) The Implementation Committee shall consist of persons drawn form the private sector, civil society, professional bodies, government and religious sectors who shall be nominated by Parliament and appointed by the President.
(2)The implementation Committee shall publish the reports of the Government under subsection (2) in the appropriate form and submit its own quarterly reports to the public evaluating the efforts of the Government and the efforts of any other person or body concerned to implement the recommendations of the Commission.
(3) Implementation of the report of the Commission shall commence within six months of the adoption of the report by Parliament.
Tabling of report 40. (1) The President shall immediately upon receiving the report of the Commission, submit a copy to the Speaker of the National assembly with a request that it be tabled before the National assembly within fifteen days.
(2) The National Assembly shall discuss the report of the Commission within thirty days from the date of the tabling of the report in the National Assembly and recommend mechanisms for implementing the recommendations contained in the report including recommendations for legislation to implement the report.
41 (1) The President shall report to the National Assembly within three months of receipt of the report of the Commission and twice a year thereafter, as to the implementation of the Commission’s recommendations.
2) All recommendations shall be implemented and where the implementation of any recommendation has not been complied with the National Assembly shall require the President to show cause for such non-compliance.
Dissolution 42. (1)The Commission shall stand dissolved three months after submission of its report to the President
(2) Before the Commission is dissolved, the Commissioners shall, among the final administrative activities of the Commission—
(a) organise its archives and records, as appropriate, for possible future reference, giving special consideration to –
(i) what materials or information might be made available to the public either immediately or when conditions and resources allow; and
(ii) what measures may be necessary to protect confidential information; and
(b) organise the disposal of the remaining property of the Commission
Regulations 43. (1) The Commission shall make Regulations generally for the better carrying out of its functions under this Act.
(2) Without prejudice to the generality of subsection (1), regulations under this section may -
(a) prescribe anything required by this Act to be prescribed;
(b) prescribe the disciplinary procedures applicable to the staff of the Commission;
Procedure for the Selection of Nominees for Appointment to the Commission
To best ensure the Commission's independence and credibility, the Commissioners shall be selected through a consultative process as follows: –
1. The Selection Panel shall, within fourteen days of the
commencement of this Act, by advertisement in the Gazette and in at least three daily newspapers of national circulation, invite applications from persons qualified under this Act for nomination as commissioners.
2. An application under paragraph 2 shall be forwarded to the Selection Panel within twenty-one days of the advertisement and may be made –
(a) by any qualified person; or
(b) by any person, organization or group of persons proposing the nomination of any qualified person.
3. The Selection Panel shall, within seven days of the expiry of the period prescribed under paragraph 2 and after broad consultation with a broad section of Kenyan society, –
(a) consider all the applications received under subsection (2); and
(b) recommend to the National Assembly suitably qualified persons for nomination as commissioners.
4. The Selection Panel shall rank and provide comments
regarding each of the finalists to the National Assembly.
5. The National Assembly shall, upon receipt of the recommendations of the Selection Panel under paragraph 3, nominate six persons for appointment as Commissioners and shall submit the list of nominees to the Minister for onward transmission to the President.
5. The Minister shall forthwith forward the names of the persons nominated under paragraph 3 to the President who shall, by notice in the Gazette, appoint therefrom four commissioners.
(6) In nominating or appointing persons as commissioners, the National Assembly and the President shall have regard to gender equity and regional balance.
Wednesday, April 30, 2008
Wednesday, April 16, 2008
"The Death Sentence Was Used As a Tool of Intimidation"
Interview with Leonard Vincent
Credit:Reporters sans frontières
Leonard Vincent, head of the RSF's Africa desk.
CAPE TOWN, Apr 10 (IPS) -
Journalism in Ethiopia has become an increasingly
hazardous trade over recent years. A clampdown on the media in the wake of
disputed elections in 2005 continues to resonate in the country, while
certain members of the press have even found themselves facing capital
In July 2007, journalists Andualem Ayele Legesse, Mesfin Tesfaye Gobena,
Wonakseged Zeleke Tessema and Dawit Fasil Woldeselassie were sentenced to
death on charges that included treason -- this in connection with the
unrest that followed the 2005 polls.
While the four were later amnestied, their sentences are viewed as having
had a somewhat chilling effect on press freedom in Ethiopia. To find out
more, IPS correspondent Miriam Mannak spoke to Leonard Vincent, head of the
Africa desk at Reporters sans frontières (Reporters Without Borders, RSF).
This Paris-based advocacy group helped negotiate the release of the four
IPS: The decision to issue death sentences against the journalists must
have come as a shock to RSF...
Leonard Vincent (LV): On the one hand it was, as it is a very serious
matter. On the other hand, we never thought that the Ethiopian government
would go ahead with it and shoot the journalists. The death sentence was
used as a tool of intimidation, a way to put journalists in their place and
to make sure they understand the consequences of defying the authorities.
Despite the fact we were aware of this and knew the government was
overreacting, we treated the situation with the greatest urgency...
IPS: What effect has this event had on the media in Ethiopia?
LV: It has had a great impact. Self-censorship is a way of life for
Ethiopian journalists, especially for those living and working in Addis
Ababa (the capital). Any form of criticism and any attack against the
president or the government may lead to telephonic threats, intimidation or
even arrest and (a) jail sentence...
Nevertheless, two of the journalists involved have again started
independent newspapers in Addis Ababa. This was a couple of months ago. Of
course, both editors are under strict surveillance and it has been very
difficult to obtain a license, but they are managing.
IPS: Are journalists in Ethiopia afraid of the death penalty?
LV: No real fear exists among media people when it comes to the death
penalty. These were exceptional circumstances that lead to the events in
2005, and everyone understands that. That includes RSF.
There is...a greater fear of being imprisoned. Prisons in Ethiopia have a
very bad reputation: we are talking about cells with 120 people and only
one latrine, as well as restricted visiting rights.
IPS: Have there been recent cases of journalists elsewhere in Africa
receiving death sentences?
LV: Not that I know of. Maybe some artists have been sentenced to death,
but not journalists -- at least not in the past 10 years.
There have been cases of life imprisonment. Moussa Kaka, a journalist from
Niger, was arrested in September last year on a charge of complicity in an
attack on state authority. He is being accused of being in contact with the
rebels who are fighting in the north of the country. Moussa faces a life
sentence, but has not been tried yet. In the same event, two French
journalists were arrested and threatened with the death penalty. They were
released in January this year.
IPS: In general, is it difficult for journalists in Africa to write about
the death penalty?
LV: Yes, commenting on judicial decisions is tricky in many countries. In
some nations journalists are not even allowed to comment on the justice
system. Last month in Niger, the editor of the independent publication
'L'Eveil Plus', Aboubacar Gourouza, was sentenced to one month in jail for
an article in which he compared the provisional release of the mayor of the
city of Maradi with a decision to keep the mayor of Niamey (the capital) in
prison. Both mayors had been accused of fraud.
IPS: What type of difficulties does your organisation encounter when trying
to highlight these problems?
LV: In some countries, the authorities are quite prejudiced and sceptical
towards us. In Rwanda, for instance, they suspect that RSF is funded by the
French government. Others think we are paid by the American intelligence
services. That is obviously not true...We try to open the debate with the
authorities and talk to them about freedom of the press. Sometimes it
works, sometimes it doesn't. (END/2008)
By George Subsahara
Kenyans finally have a cabinet in place. However nobody has popped the champagne yet. In fact what is rapidly emerging amongst most Kenyans all over the world is deep exhaustion when it comes to Kenyan politics these days. Very telling was the fact that the wild celebrations that one would have expected from Kisumu did NOT happen.
Just thinking about the twists and turns in Kenyan politics since last December makes many Kenyans feel very tired. But as our very own mwalimu likes to say; na bado.
One of two things will happen next. Either Ali Baba and his 41 thieves will eat in bliss and you will not hear a sound because when thieves know too much about each other, they fear each other. Or alternatively we are about to be treated to endless squabbling, turf wars and all sorts of clownish activity. Most analysts agree that there is no option “C”
Sigh. Just thinking about it makes even me feel very tired.
There are a few things that have clearly emerged from the coalition cabinet named yesterday. For instance, the dominance of Kenyan politics by one tribe continues.
There is no doubt that the Prime Minister’s office will wield immense powers despite what skeptics say. That means that the deputy Prime Ministers will be fairly powerful people and will no doubt overshadow even the vice presidency which has just become an even weaker office that it was previously.
It beats logic how the president of Kenya can hail from the Kikuyu tribe and then have one of the deputy prime ministers hail from the same tribe. That does not augur well for the country, period. It is instructive that all the front runners for deputy premiership from PNU were from that single tribe. In fact this is the big weakness with PNU that many people have not seen. The memories of Kenyans are indeed very short. Everybody seems to have forgotten that what really caused Moi’s downfall was the fact that Kanu was fairly dominated by persons from the Kalenjin community.
However what President Kibaki has done in barely a quarter of the time that Moi was in power is amazing to say the least (that is in the 5 years, going to 6, that he has ruled Kenya in comparison to Moi’s 24 years). Kibaki has surpassed what his predecessor did in 24 years in avery short time. When you understand this key point, you will understand why President Kibaki lost the elections of last December by close to a landslide and you will also understand why chaos broke out immediately after the so-called election results were announced. You will also understand why PNU’s fall will create a more resounding crash than that of KANU before it.
The choice of Uhuru clearly shows you just how influential retired president Moi still is. We all know the thinly veiled threat that came from Kanu before the cabinet was named. Clearly the old man is still dreaming dreams about KANU. In my view the rapidly emerging political landscape can only mean that Kanu is dead as a dodo, whatever Moi or anybody else does.
The other thing that is very clear from the bloated cabinet is the fact that political games are still being played big time. ODM has emerged in a much stronger position than most analysts seem to realize.
We now have a prime minister at the heart of government with constitutional powers for the next 2 years to stick his nose in government business and government secrets. That can’t be good news for PNU hardliners some of whom were determined to retire very rich when President Kibaki’s final term comes to an end. That is the point that everybody has missed, concentrating instead on the much hyped portfolio balance.
Raila likes to say; Usione Simba imenyeshewa ukafikiri ni paka. (Do not see a lion that has been rained on and dare mistake it for a cat). That is the exact position Raila thrives from, that of being seen as an underdog. Indeed he started his presidential campaign as the “unelectable presidential candidate” Remember? It looks like Raila is at a great disadvantage now but just watch what will happen.
Of course the other thing that all this does is to complicate the Kibaki succession a great deal and I am convinced that the current Mungiki troubles across the country are linked somehow to the Kibaki succession.
What PNU have done as precautionary moves is to move the Ministry of Special programs out of the president’s office and then crowd the presidents office with numerous new portfolios that they believe need to be watched, mainly because of the individuals who occupy those dockets. These are immigration (Otieno Kajwang) national heritage and culture (William Ole Ntimama) as well as public service (Dalmas Otieno). All these are key allies to ODM leader Raila Odinga.
Clearly ODM have been fed a suicide ministry called the ministry of Lands (headed by James Orengo). This is the ministry that will have to be at the forefront of sorting out the mess created by President Kenyatta with big help from retired President Moi in the 60s which culminated in the recent troubles. Orengo has been set up for major failure mainly because he has no powers to make the bold changes required to correct the injustices of the past which is the only way to restore permanent peace. This story of always falling back on the law and the legal owners of the land will just NOT wash.
Then somebody has gone and done a ludicrous thing with the ministry of education. We now have a ministry of education and a ministry of higher education, science and technology (Sally Kosgei). The implication here is that the Ministry of education is the “boss ministry) while the Higher education ministry is a junior ministry reporting to it. If this were not the case then Sam Ongeri’s ministry should have been called the Minstry for basic education.
Another political game that has been played is what has been done with the Ministry of tourism and wildlife. It has been split into the ministry of tourism headed by Najib Balala of ODM and the ministry of Wild life and forestry headed close Kibaki confidante Noah Wekesa. At first glance Hon wekesa looks like he’s been fed a weak ministry. However the truth is that Forestry and Wild life will control all the lucrative parks in the country and will have the real power while the ministry of tourism will see Balala as a pen pusher and globe trotting salesman for Kenyan tourist attractions.
Tuesday, April 15, 2008
By Jerry Okungu
As a Kenyan, I have no business meddling in Somaliland politics. However, as an African who lives in East Africa, with many great friends in that country, I feel obliged to comment on my neighbour’s affairs because the goings- on in that country affect the whole East African region directly. I need peace and security in my neighbourhood.
I have a soft spot for Somaliland. I have been there many times in the last five years; mostly in meetings with main political parties, the civil society and media organizations to help strengthen democracy. I was happy with what I saw; an oasis of tranquillity amidst the turmoil in the greater Somalia. Several late night shopping trips in downtown Hargesia reassured me that I was definitely not in Mogadishu!
The enduring peace in Somaliland has inspired many of my articles since 2005 when I first travelled there. Incidentally, it was my first time to know the difference between Somalia and Somaliland.
My biggest concern in the last four years of discovering Somaliland and its peaceful people has been why the African Union, the United Nations and the European Union have never recognized it as a state yet with all its chaotic and violent history, the world has clung to Somalia as the more legitimate state of the two in the horn of Africa.
With relentless bloodbath in the streets of Mogadishu, a weak former warlord for President and all the ingredients of a failed state, it has been difficult to rationalize world opinion on both states. One would have imagined world leaders rushing to recognize Somaliland after several successful democratic elections since 1994; yet that was not to be!
President Dahir Riyale Kahin was elected for a five year term in May 2003. His term expires in May 2008. However, several political developments have taken place that if not addressed, will not augur well for the people of Somaliland. First, the President took the unilateral decision to extend the life of the Senate for another four years in 2007 without proper justification. As if that was not enough, the same senate has now returned a good deed for the President by extending his term in office by another year to end in 2009.
In so doing, the Senate has usurped the powers of the Electoral Commission whose responsibility is to set the election calendar for presidential, parliamentary and local council elections.
The political developments in Somaliland strike scary resemblance to similar developments that have taken place in Kenya, Uganda, Rwanda and a host of other countries in our continent. It is the same script African leaders continue to borrow from,time and time again.
First enters a progressive and democratic leader after years of turmoil. As months turn into years, our political messiahs slowly transform themselves into the same despots they deposed.
In the final year of his presidency, Dahir Riyale Kahin has been doing exactly what President Kibaki of Kenya did during the 2007 campaigns. Like Kibaki, he has been creating unnecessary districts where they need not exist ostensibly to gain favours with the electorate and create other constituencies favourable to his ruling UDUB party. In equal measure, he has been busy tinkering with local authorities to gain favour with local leaders in preparation for the 2008 elections which he has now conspired with the senate to postpone.
If there have been sporadic bomb explosions in the capital city including inside the senate chambers, it is these political manoeuvres that must be seen to be fuelling them. If there is discontent among leading political parties like KULMIYE, who incidentally government ministers are quick to blame for the explosions, we must understand this disquiet in the context of our own experiences in our countries.
African leaders love power and only pay lip service to democracy when they are seeking political office. Once they get there, the first thing they toss through the window is the same democracy.
As power gets sweeter for them; the temptation to cling to the office by any means necessary gets compelling with each passing day. This is the reason we still have the likes of Abdulahi Yusuf next door even though he knows nobody wants him as their leader in Somalia. This is why we have El Bashir in Sudan, Mugabe in Zimbabwe and Museveni in Uganda. Need I repeat that the same impulse to perpetuate themselves in power informed Obasanjo’s attempt to change the Nigerian constitution after learning the trick from Museveni two years earlier?
Five years of staying in office; it is difficult to quantify President Kahin’s achievements. I may be wrong but since he came to power before Somaliland was recognized, one would have thought that securing a seat for his country at the UN and the AU would have been his biggest achievement. That has not happened and there are no signs that it will happen any time soon. More telling; he never made significant pitches for this to happen. I saw him once in Nairobi two years ago. I was disappointed by his approach to the task!
The gains made by Somaliland in the last fourteen years are too valuable to be allowed to go down the drain through another reckless internal strife. President Kahin must realize and accept that no individual is greater than his country. He must begin to weigh his options to avoid another Somalia like situation. If he is interested in continuing his presidency, he must be humble enough to return to the electorate on time to seek a fresh mandate. Extending his term through the backdoor with unsolicited favours will not wash with Somalilanders. The wind of democracy blowing across Africa will not allow him to remain in power against the will of his people. He must be ready to carry them along or get out of their way in a civilized manner.
Saturday, April 12, 2008
Daily Nation, April 12,2008
One serious issue that seems to have been put on the back burner as the country is consumed with the near collapse of efforts to form a national unity government is the size of the Cabinet.
As efforts continue to get President Kibaki and Prime Minister-designate Raila Odinga back to the negotiating table, spokesmen for both sides have indicated that the large Cabinet of 40 ministries the two had agreed on before the talks broke down can be reduced.
With signs that negotiations behind the scenes may bear fruit and result in a grand coalition Cabinet being appointed in the next few days, the Saturday Nation revisits the issue and proposes a lean Cabinet of 24 ministries together with how they can be equitably shared between PNU and ODM.
The 24 ministries would give each side 12 slots, including those of the deputy prime ministers and any ministers that might be attached to the Office of the President or the Office of Prime Minister.
The figure of 24 was settled on after a close look at cabinets since independence established this number as the ideal maximum.
The government at independence was composed of Prime Minister Jomo Kenyatta and 16 ministers.
The Government formed one year later after the merger of Kanu and Kadu and the shift to republican status was only larger by three ministers.
Changing needs and priorities in subsequent years gradually increased the size of the Cabinet to around 25, but when in recent years the numbers rose above that, it emerged that the increase was not for the purpose of enhanced efficiency or specific governance needs, but merely to create dockets and room for individuals or to placate political and ethnic interests.
This has mostly been done not by creating specific units to handle new tasks and priorities, but by simply hiving off existing government departments and turning them into fully-fledged ministries.
Similar considerations have clearly come into play with the current proposals for an expanded Cabinet of anything between 36 and 44 ministries.
There is simply no justification now and there has not been in the past to separate Trade from Industry or Livestock and Fisheries from Agriculture. There is also no need to have separate ministries for Higher Education and Basic Education.
Also, there is no need to continue the practice of having a Home Affairs ministry stripped of its core functions such as Internal Security and Provincial Administration, leaving it with matters such as Prisons, National Heritage and Children’s services.
The latter two can easily fit into more suitable dockets if Home Affairs reverts to its natural responsibilities.
There is still need, however, to take heed of changing times and evolving priorities. Thus the proposed ministry for development of Northern Kenya and other marginalised regions is important.
Also important at this time would be a ministry specifically devoted to driving national reconstruction, reconciliation and resettlement as part of efforts to build a new and prosperous country.
On how the dockets are shared out, there is no need to interfere with the earlier agreement by both parties allowing the President to retain the key Security and Finance dockets, but that comes with the trade-off allowing ODM nominees to get the main infrastructure dockets.
After that the remaining ministries can simply be paired in regard to size and function and distributed randomly.
What ought to be the guiding principle, however, is that once a Cabinet is in place, it will be one united government rather than a two-in-one government.
Already in place is a team to harmonise the PNU and ODM manifestos. Once that is done the coalition government should be working on the same programmes and policies, and not have one wing loyal to the President and another to the Prime Minister.
The stalemate over formation of a new Cabinet was grounded squarely on the issue of “portfolio balance” as required by the power-sharing deal signed between President Kibaki and Mr Odinga that came into law as the National Accord and Reconciliation Act.
The accord allowed for creation of an office of Prime Minister and two deputies to be part of a grand coalition government made up equally from both sides of Parliament.
Another issue that initially caused division was on the size of the Cabinet. Mr Odinga initially insisted on what he termed a “lean” Cabinet of 34, which would be achieved by simply doubling the size of President Kibaki’s current “half Cabinet” of 17 with the inclusion ODM members.
That would still have made up the biggest Cabinet ever in Kenya, but the figure of 34 looked modest compared to the massive 44 initially proposed by President Kibaki’s PNU, which did not want to drop any of the current lot and also wanted space for more appointments to placate some former ministers and groupings left out of the half Cabinet.
When President Kibaki and Mr Odinga eventually met on April 3 to announce that they had reached an agreement, it emerged that they had settled on 40 ministries — which was still considerably large.
The proposal for such a bloated Cabinet provoked widespread outrage, but the anger was overshadowed by much bigger concerns as the effort to form a unity Cabinet almost collapsed amid differences over equity in portfolio sharing.
While the talks ground to a halt, ODM introduced a raft of new conditions, including going back on the agreement for 40 government ministries and saying they should be no more than 36.
In response PNU members of Parliament said they were prepared even for a really lean Cabinet of 20, a statement that seemed calculated to call the ODM bluff.
It is time the bluffs of both parties were called.
Thursday, April 10, 2008
By Onyango Oloo
I was among tens of thousands of Kenyans who spent hours on Sunday, April 6, 2008 glued to their respective television sets.This was the day when the much awaited Grand Coalition cabinet would be finally named.
As a member of both Kenyans for Peace with Truth and Justice (KPTJ) as well as the National Civil Society Congress (NCSC) , I was of course, seething with indignation at ODM/PNU consensus of an obscenely huge government consisting of a President, a Vice President, a Prime Minister, 2 Deputy Prime Ministers, 40 Cabinet Ministers, at least another 40 Assistant Ministers-not mentioning the Permanent Secretaries and the rest of the bureaucracy.
All the same, it was supposed to be a pivotal moment in Kenya’s breath-taking political developments over the last three months.
After hanging on at the edge of our seats, we were slapped with an anti-climatic announcement that there would be no announcement.
On Monday, April 7th, again, after another spell of tenterhooks we saw members of the ODM Pentagon hand deliver a note to President Mwai Kibaki at his Harambee Avenue offices.
At a later press conference that same day, held just before the 7 O’clock Kiswahili television evening news casts, Prime Minister Designate Raila Odinga told the Kenyan and international public why he had opted NOT to attend a scheduled Harambee Avenue one on one shin dig with the besieged Kenyan President.
Raila revealed how the PNU side had reneged on and retracted from all the agreements on portfolio balance and setting up the Grand Cabinet that had been negotiated over the last couple of weeks.
The Prime Minister Designate exposed the insatiable greed for power that had seen Kibaki’s cronies insist on hanging on to ALL the crucial and strategic ministries even after ODM had conceded the Finance, Justice and Constitutional Affairs, Internal Security and other portfolios.
The determination of PNU to claw back Local Government, Foreign Affairs and some of the infrastructure dockets was among the main reasons why Raila and the ODM side had concluded that Kibaki and his side kicks were bargaining in bad faith.
Raila underlined that ODM was not prepared to be a mere passenger or junior partner in the proposed Grand Coalition because the provisions of the National Accord had predicated the formation of the new cabinet on the principle of equal partnership.
It is in this context that Raila had urged Kibaki to DISSOLVE the so called “half cabinet” foisted on the traumatized Kenyan people on January 8, 2008, at the height of the violent post election crisis.
Mwai Kibaki, in a swift live rejoinder via a temporary lectern set up at the entrance of his Harambee Avenue office blamed Raila for the impasse, claiming that he had waited all day for the PM Designate so that the details of the incoming cabinet would be worked out between the two of them. He did say one thing which was revealing when he referred to an “expanded cabinet” rather than the formation of a brand new one based on two partners- ODM and PNU.
Let me quickly say this:
I am GLAD at the current stalemate rather than peeved. In other words, I am not on the verge of dying from anguish. I was more worried when the prospects of ODM entering into a Grand Coalition on the terms prescribed by the intransigent PNU hardliners.
It is a GOOD thing that PNU has proved once again, their power hungry, selfish, undemocratic and two-faced credentials, reminding Kenyans why Kibaki and his kitchen cabinet CANNOT be trusted to keep their word- a trend we started observing way back in January 2003.
It is IMPORTANT to refresh our memories about how Kibaki and his current half cabinet came to be where they are today- it appears that many of us as Kenyans are suffering from a serious case of political amnesia.
There was an election held in this country on Thursday, December 27, 2007. Millions of Kenyans came out to vote and they did so peacefully and largely successfully.
ODM won overwhelmingly in the civic and parliamentary contests. ODM’s Presidential candidate Raila Odinga was leading by more than a million votes when a series of bizarre happenings- returning officers who did not return phone calls; results which were held back; forms which were not filled out properly; strange voters who opted only to vote for the President and not for their MP or local councilor; demented tirades from the ECK chair; claims by ECK employees of vote tampering; Kibaki ministers (e.g. Saitoti, Kamanda, Mugo, Mwakwere) being caught with their pants down supervising the tampering with ballot boxes; the raucous scenes at the KICC; bayonet and rifle wielding GSU militias ordering journalists out of the media centre; a state ordered literal black out- all culminating in the announcement of a blatant, cynical civilian coup installing the defeated Mwai Kibaki as the illegitimately and illegally “elected President” of Kenya.
This announcement, as we recall sparking of a ferocious, spontaneous nationwide orgy of mass anger which quickly turned not only violent but a conflagration with heavy ethnic overtones leading to tragedies like the human infernos in Eldoret and Naivasha where innocent Kenyans lost their lives solely on account of their tribal backgrounds.
We also remember vividly the mass murders and daily brutal atrocities by the police as they shot unarmed innocent civilians included pre-teen kids and brand new infants.
And as all of this was going on, Kalonzo Musyoka- yes the very one who claimed to be Kibaki’s most formidable opponent coming out in his true treacherous colours as Kibaki’s controversial deputy.
This followed a few days later by the pornographic announcement of a "half cabinet" consisting of Kibaki’s cronies- including at least two people openly accused on fanning the violence by bankrolling the murderous goons who went on a panga slashing spree in the informal settlements of Nairobi, Nakuru and elsewhere targeting innocent Kenyans whose only crime was sharing an ethnic background with Raila Odinga, William Ruto, Musalia Mudavadi and other ODM leaders.
Yes it is important to remind Kenyans and the world that Mwai Kibaki STOLE the Presidential vote and then ILLEGALLY announced an ILLEGITIMATE "half cabinet".
In other words, Kibaki and PNU are currently holding state power because they perpetrated a COUP against the Kenyan people.
They should be in court answering charges of TREASON.
Instead, courtesy of the peace-loving Dr. Kofi Annan and intense international pressure from George Bush, Condoleeza Rice, Gordon Brown, Dr. Merkel, the European Union and others, democracy seeking Kenyans were arm-twisted into FORGIVING Mwai Kibaki and PNU for their crimes against the Kenyan electorate and further prevailed upon to accept a peace deal.
But far from being contrite and relieved at the national reprieve, the PNU gang led by Mwai Kibaki proceeded to saunter and swagger on, completely oblivious at the nausea and disgust they were attracting from millions of Kenyans. Within a few days of their being sworn in, two rookie ODM MPs were assassinated in circumstances that did not rule out the complicity of the PNU controlled state organs. Despite attempts to bribe the other side, Kibaki witnessed his forces vanquished in a televised triumph for ODM during the elections of the Speaker and his Deputy.
Quickly assuming the status of an international pariah, the Kibaki led junta found some of its key members facing visa and travel bans to the Western capitals of capital where the Kenyan comprador bourgeois elite loves to stash its ill gotten swag, vacation in and educate their brats.
The National Peace Accord and the ensuing passage of legislation came into force to avert a possible descent into violent civil war largely PROVOKED by war mongers FROM THE PNU SIDE.
I find it CRUCIAL to reiterate these very well known facts because of a startling amnesia in the most unlikely of places- WITHIN THE ODM CAMP.
It appears to me that Raila Odinga and ODM are somehow FORGETING that THEY IN FACT, WON THE 2007 CIVIC, PARLIAMENTARY AND PRESIDENTIAL ELECTIONS.
It appears to me that Raila Odinga and ODM are forgetting that they still have the overwhelming support of the vast majority of the Kenyan people.
It appears to me that Raila Odinga and ODM are forgetting that regionally, continentally and across the world, they still retain the higher moral ground because it is evident that they were robbed of a rightfully won election.
Why do I say this?
I say this when I contemplate the series of OUTRAGEOUS COMPROMISES and CONCESSIONS that ODM has made to the PNU side.
It was bad enough having to countenance Kibaki being referred to as "President" when he in fact was the runner up.
It was terrible enduring the daily smirk of the turncoat so called "Vice President" Kalonzo Musyoka or enduring the barrage of content free propaganda from Dr. Alfred Mutua and the lectures from the illegal half cabinet.
What ODM should NOT have done, is to quietly agree that the Grand Coalition was a more or less PERMANENT arrangement lasting the full mandate of five years- rather than a TRANSITIONAL ONE put in place as arrangements were made to hold FRESH PRESIDENTIAL ELECTIONS within eighteen months or two years at the latest.
ODM should have DEMANDED, from the very outset, the IMMEDIATE DISSOLUTION of the ILLEGAL HALF- CABINET as one of the PRECONDITIONS for jump starting the Grand Coalition government.
ODM should have RESISTED STRENOUSLY, PNU's obscene insistence on a bloated 40 member cabinet. Because it did not do so, ODM’s credibility as an alternative voice for serious change has tumbled down to the abyss and ODM must do a lot of work to repairing this unnecessary damage to its image.
ODM made a serious mistake in cutting itself off from its mass base as it reduced its negotiations with Kibaki and PNU to a very secretive technocratic and bureaucratic affair hermetically sealed from the public scrutiny of the millions of Kenyans who voted for Raila and ODM; the thousands of Kenyans who were killed and injured demanding “Haki Yetu!” and chanting “No Raila, No Peace!”. Because it did not put in place an mechanism of explaining to the people its rationale in making certain serious concessions, it was no wonder that soon many of ODM’s very supporters started getting very disillusioned, convinced that after all the political rhetoric, ODM was really NO DIFFERENT from PNU because both appeared to wananchi to be more obsessed about political power and personal aggrandizement.
Raila Odinga SHOULD NOT HAVE agreed to be showered by the trinkets and trappings of apparent clout (the over-excited security detail, the convoys, the sumptuous lunches with PNU hawks like Karua and Kimunya) BEFORE he was DULY SWORN in as Prime Minister with ALL HIS EXECUTIVE POWERS.
ODM should have maintained the IDEOLOGICAL OFFENSIVE instead of acquiescing to this ridiculous suggestion from PNU that their respective manifestos should be"harmonized". PNU’s credo is unabashedly NEO-LIBERAL in orientation and in practice. ODM’s manifesto projects the party as pursuing a SOCIAL DEMOCRATIC ORIENTATION.
Why should Kenyans be prepared for a wedding between a night runner and his nocturnal victims?
ODM should have soberly analyzed the TRUE OBJECTIVES of the United Stated and her Western allies. It is becoming abundantly clear, especially if one carefully studies the utterances of Ambassador Ranneberger, that the US is more interested in a superficial “peace” (read political stability) rather than a sustainable JUSTICE and that is why the Nairobi-based diplomat had no serious qualms with the proposal for an overweight cabinet.
Because of the above miscues and serious errors, ODM came on the brink of ceding ALL POWER to the gang they had decisively vanquished at the 2007 polls.
It is therefore something of a very mixed blessing that Kibaki and his PNU cronies have decided to reveal themselves even further.
The current impasse thus gives ODM, and especially its kinara Prime Minister Raila Odinga, a very welcome BREATHER which will allow ODM to RECOUP, REGROUP and REPOSITION itself.
Given what I have said above, it is obvious, at least to me, what steps ODM should take.
The first thing ODM should do is to APOLOGIZE to its followers, and indeed to the Kenyan people of allowing itself to be hoodwinked into this conspiracy for a bloated cabinet. If ODM, especially through Raila Odinga, does so immediately, publicly and unequivocally, it will recover a lot of lost ground and regain the goodwill of large sections of the Kenyan populace.
Secondly, ODM should carry out a national campaign to sensitize the public about its position in the ongoing negotiations to put a Grand Coalition into place. They should continue exposing the duplicity and chicanery of the PNU clique.
Thirdly, ODM must insist that the Grand Coalition is a TRANSITIONAL measure with a shelf life not extending beyond two years from now and that it must be a preparation for FRESH PRESIDENTIAL ELECTIONS giving either ODM or PNU or any other party for that matter an UNDIVIDED MANDATE to govern Kenya.
Fourthly, ODM must LEAD the process of coming up with a new democratic constitution WITHIN THE NEXT 12 MONTHS.
Fifthly, ODM should pursue the serious case it has launched against the PNU leadership in the Hague- provided of course, that it does NOT have MORE skeletons in its closet.
Sixthly, ODM must avoid the stigma attached to MDC in Zimbabwe by not appearing to taking all its cues from Washington, London, Berlin and other Western capitals.
Seventhly, ODM must ratchet up its interventions within the African Union and other Pan Africanist platforms within the continent and the African Diaspora.
In the Eighth place, ODM must clearly articulate its vision when it comes to unemployment, poverty eradication, gender oppression, the rights of marginalized Kenyans and most crucially its approach to peace building and conflict transformation. For instance ODM must NOT be seen to ENDORSE the current bloodthirsty Kibaki policy in dealing with the situation in Mount Elgon or the indiscriminate rounding up of Agikuyu youth on the pretext of flushing out alleged Mungiki members.
In the Ninth place, ODM must persuade the Kenyan people that WANANCHI TOO are SHARING POWER- not just a handful of the elite belonging to two mainstream political formations.
In the TENTH PLACE, ODM must place on the PUBLIC AGENDA the possibility of walking out of the Accord and seeking a fresh mandate from the people through PRESIDENTIAL ELECTIONS should the present PNU created quagmire persist for another two weeks.
Those are my suggestions. I am sure that NOT EVERYONE AGREES WITH ONYANGO OLOO on this one.
But then again, what else is new?
By Odhiambo T Oketch
The current impasse between PNU and ODM on portfolio balance can best be looked at from the PNU point of view, what portfolio balance means to them even in their current government.
We must start by acknowledging that PNU got 43 seats only. They hence conned KANU, the desperate ODM-K and other small parties to join them in the power greed against ODM who had 106 MPs.
With the support of the two desperate parties, they called the police to the roads, and had Kibaki sworn in at dusk as the president of Kenya. Thereafter, Kibaki formed what they called half cabinet of 17 people.
In the half cabinet, which is supposed to serve the interest of all Kenyans, Kibaki took for himself the 7 big ministries that matter. In the edition of Showdown, a popular talk show at NTV, Hon James Orengo brought this out more candidly.
Even in PNU government, Portfolio balance is skewed in favour of Kibaki and Central Province. Kenyans, even those in PNU government must now also call the Kibaki bluff.
Look at this portfolio balance;
1] President of Kenya; Mwai Kibaki from Central Province
2] Minister for Finance; Amos Kimunya from Central Province
3] Minister for Internal Security; George Saitoti from Central Province
4] Minister for Justice; Martha Karua from Central Province
5] Minister for Local Government; Uhuru Kenyatta from Central Province
6] Minister for Energy; Kiraitu Murungi from Central Province
7] Minister for Roads and Public Works; John Michuki from Central Province
In a cabinet of 17 people, the rest must be having some impairment that clouds their systems into reality. Why can the people in PNU also call for portfolio balance in their half cabinet?
Then, we must also look at other arms of that PNU half government and confirm if it is balanced;
1] Head of Public Service and Secretary to the cabinet; Francis Muthaura from Central Province.
2] PS Internal Security; Cyrus Gituai from Central Province
3] PS Defence; James Mwaura from Central Province
4] PS Energy; James Nyoike from Central Province
5] PS Education; Karega Mutahi from Central Province
6] PS Finance; Joseph Kinyua from Central Province
7] PS Roads and Public Works; Mwaura from Central Province
8] Chief Justice; Evans Gicheru from Central Province
9] Director KACC; Aaron Ringera from Central Province
10] Chief Whip; George Thuo from Central Province
11] PPO Nairobi; Njagi Njue from Cental Province
12] Governor Central Bank; Njoroge Ndungu from Central Province
13] Cardinal; John Njue from Central Province etc etc
This is what PNU knows as sharing power with other Kenyans.
Even in PNU itself, where is the love for the rest of Kenya in distribution of power.
This is all the more reason ODM must insist that a new government is formed, with clear distribution of power to all the regions. It is not enough just being in cabinet being a minister for Nairobi Metropolitan and Citi Hoppa Services.
Odhiambo T Oketch
By Patrick L Omondi
St. Paul, Minnesota
Prime minister designate Hon Raila Amolo odinga is a man with a large constituency. He has transformed himself through political evolution, rising to a powerful position that will allow him to share real power with the incumbent president. His party strength in parliament is an added muscle to his strength, including the recent triumph of ODM in parliament to bag the prestigious national assembly speaker position.
Away from Raila, another individual with tremendous power is the president. His authority is bestowed to him by the constitution as the head of state. He may find himself weakened at this position being the leader of a minority party but this is cushioned by his position as president and commander in chief of the armed forces. He has already used his position under the old constitution to solidify his position as president by rewarding individuals and smaller parties with key appointments in government in return for their support.
The recent constitutional amendments may have watered down the position of the president but he is keen to remain relevant politically, through patronage and association with willing partners, to keep the prime minister in check.
Raila and Kibaki are strange bedfellows in the same way PNU is to ODM. Circumstances are forcing them to share one roof but as long as they remain in the marriage, they will continue to see things differently. They will
bicker, scratch faces and their followers will continue to mock and wrestle, just to prove their worth.
I have been following the ongoing coalition discussion and the mediation process. Making comparisons with the past political marriages, the last being Narc that propelled Kibaki to leadership.
What is evident in the current marriage just like in the past is a culture of mistrust and suspicion. Raila found his LDP being treated as illegitimate member of the Narc coalition by the Mt Kenya power brokers soon after Kibaki was inaugurated president. The popularity of Raila became his undoing, when his rivals moved to tame his rise and block his contacts with the president.
Today as we enter a new marriage, under constitutional amendment, the same forces are still in play. The president is surrounded by hardcore friends, including those scheming for the 2012 succession. They see the new world older as making them politically irrelevant while elevating their foe, Raila Odinga to the helm, a strategic position that could see him dethroning them all in any future contest.
Kibaki no longer enjoys any freedom that could allow him to make independent choices and judgment. His view of the world is controlled; the president can only hear and see the world through their lens. In this arrangement, they have issued threats and intimidated him not to cede power and authority to ODM for their own selfish interest.
Where is this fear of Raila and his ODM stemming from? These are the same forces that were in play before the December polls results were announced. The charade that witnessed the elections and the manner in which Kibaki assumed office were very suspicious. All looked stage managed, carefully orchestrated to block Raila ascending to the presidency. We can now see the very men and women laboriously blocking any progress made in the new political arrangement to keep their victim at bay.
How long will our country men continue victimize others, treating them with suspicion as if they do not deserve being in the same country and in leadership?
The country recently witnessed uncalled for pain and destruction. Many lost their lives and property with thousands displaced while others are nursing their wounds. We thought the country had suffered enough for the so called leaders to see sense. For how long will the leadership of this country remain blind to our suffering?
Mr. President, rise up to the occasion. Free your self from the bondage imposed on you by a gang surrounding you for their self interest. The country is bigger than them and you must listen to the cry of the people you purport to lead. Parliament, a voice of the Kenyan people has spoken.
It is time you caved in to parliament.
Patrick L Opondi,
St Paul, Minnesota.
The writer is a post graduate student at Hamline University , USA .
Published on April 10, 2008, 12:00 am
By Okech Kendo
On the eve of the dusk of its mandate, the International Criminal Tribunal for Rwanda has potent lessons for African leaders who would drive their countries down the genocide path.
Many former ministers, businessmen and professionals with murderous tendencies in the Rwanda of 1994, have appeared before the court. Suspects and convicts have had their day in the dock to account for their role in the massacre of about 800,000 people.
The Arusha-based United Nations facility has shown that even the most powerful is not above international law; that in this era of justice without borders, impunity does not pay. Sovereignty cannot shield crimes against humanity.
These potent messages should always be rooted in the African psyche. Securing a permanent mandate for the tribunal can institutionalise the lessons.
The United Nations Security Council established the Arusha facility to prosecute persons responsible for genocide and other serious violations of international humanitarian law in Rwanda in 1994.
By the end of the year, about 70 suspects will have been tried. The UN Security Council has set December as the do by date for first instance trials in Arusha. It expects appeals to be concluded by December 2010, when the mandate of the tribunal expires.
The indicted so far include Rwanda prime minister at the time, Jean Kambanda, who became the first former head of government to be convicted for genocide and crimes against humanity. He was sentenced to life imprisonment.
Others are former foreign and defence ministers, and the former chief of general staff of the Rwandan Army. Thirteen of 19 ministers in the interim government at the time have been arrested.
Seventy-two of 90 indicted suspects have been arrested. They include politicians, military commanders, religious and militia leaders and businessmen, who preached Hutu hegemony.
The indicted, some of whom have been charged, convicted or acquitted, organised indiscriminate murders of Tutsis and moderate Hutus in the apocalyptic mayhem, 14 years ago. Rwanda marked this anniversary yesterday.
Then Minister for Foreign Affairs Bicamumpaka Jerome was arrested while loitering in Cameroon in 1999. The Minister for Health, Bizimungu Casimir, was arrested while hiding in Kenya in the same year.
Then Minister for Interior and Vice-President Karemera Edouard was arrested while hiding in Togo in 1998. Then Minister for Commerce Mugenzi Justin and Mugiraneza Prosper, former Minister for Civil Service, were arrested in Cameroon in 1999.
Pauline Nyiramasuhuko, then Minister of Family Affairs, was arrested in Kenya in 1997She has been accused of rape, and other human rights abuses, along with her son. She was an accomplice in rapes because she did nothing to stop the violations.
The fugitives could run but they had nowhere to hide, when their pasts caught up with them. This is a lesson for those misbehaving in Kenya today.
Others, including businessman Felicien Kabuga alias Idris Sudi, are still on the run, with millions of dollars on their heads. Money they plundered and power they hogged cannot buy freedom against international justice.
The message from the Arusha tribunal is larger than Rwanda in a continent where warlords and demi-gods often violate the will of the people, with impunity, at least for now.
With misbehaving presidents across Africa, there are potential hotspots of failed leadership. The perpetrators of violence, defilers of democracy, and human rights abusers need this deterrent institution.
Unless Yoweri Museveni forgets his claim to absolute power unto eternity, he would have to deal with popular bubbles of dissent.
Cameroon is another hotspot, thanks to President Paul Biya’s obduracy. Omar al Bashir is a problem for Southern Sudan and Darfur, with China’s shameless complicity.
President Robert Mugabe, the fist and feisty bully of Harare, is misbehaving. He refuses to see there can be another Zimbabwe where everyone has a right to a decent living.
Someone will have to pay for the collapse of Somalia. In Ethiopia, Meles Zenawi, who rules with menaces, needs to know it is possible to be in power today and in the dock tomorrow.
Africa still needs the Arusha tribunal, which can be renamed with a new mandate to deter emerging human rights abuses and power-driven atrocities.
The writer is The Standard Managing Editor, Quality and Production
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