Tuesday, March 9, 2010



Dear Philip,

I live in the villages and trenches so it is conceivable that we don't keep in touch as regularly as we should.

Many thanks for the reflections on TJRC, the model of reconciliation shared and the broad credibility concerns and gaps. Transitions are really watershed moments that come with courageous and determined leadership that is keen to make a break with the past. These happen best where new wine replaces old wine and clearly we missed that opportunity in 2003 when the upswell was huge and public opinion was on a crest with the new regime.

Then there was regime change. Now we have a government that succeeded itself that has had its hand forced to share power and tamper a transition it has no inclination to invite.

So we have a TJRC not because we want to make a break with the past but because the accord flagged it as an important issue and more because we fought; courtesy of brinkmanship and election theft. So if in a selection process the named commissioners got to the appointing authority, one can underatsnd how easy Kibaki found it fit to choose Kiplagat and company; and one can also easily understand why Kiplagat is adamant inspite of the public displeasure with his record. He is like a limpet that grips a rock not going to budge. Mutula, Kalonzo, Moi and others agree with him because he can do the hatchet job for them.

We did not set ourselves up for failure; we responded to a man-made crisis in 2007 the best way we could. The commission as an institution has issues, not the chair alone. I am for example disturbed that a TJR process lacks historians; all are lawyers even the CEO they appointed is yet another lawyer! What does that say?

As you observe we have to make choices. The framework for this process is 2 years. Credibility is lacking in the commission as currently constituted and we may not change that soon.

Will playing ball generate anything if all the issues being raised are ignored? Kiplagat is the wrong person for this job, he doesnt have an inspiring group around him that could be the glue to stick the commission together so that kenyans give them the benefit of doubt. I dont know if Tecla is the one who was in Paecenet and if she was why she is absent in this discourse of leadesrhip. If some commissioners do indeed resign, that will be a great chance to get some new blood in that can inspire public confidence again.

True truth commissons only make sense when they are state driven because state here is admitting for the first time that it made mistakes, but reading the law keenly our TJRC lacks that judicial tooth, for example unless the commission starts compelling those who stole from the taxpayer to have that cash returned and ill gotten wealth confiscated, the 1 million acres the 3 presidents who have led kenya have hoarded is annexed back, there will be nothing to use for reparations if recommended. I proposed a peoples process because with the right support it can put pessure on our less than satisfactory one to be made better.

I am pushing PeaceNet because I think you have the levers that can get religious leaders, discredited as they are, to get back to real issues and TJRC is their most basic issue for them. Why are they concerned with mundane issues when this should have been their core business? You work with these folks, you are best placed to get them to make this a national agenda and place PeaceNet at the core of advocacy in correcting even if dismally the tjrc process.

PeaceNet must come out more strongly, more elaborately, more frequently and more decisively at all levels and everyday on this issue; this must be your most important subject this year; even if you will sound hoarse like the din with the constitution that has been on for 20 years your patented badge must be that of salvaging TJRC from itself, those intent on scuttling it and those that want to benefit their stomachs. I would like to see more peacenet on this matter and I will share with you what consultations here in the coast generated on this TJR matter.

Patrick Ochieng

Hi Patrick,

It’s a while since we last got in touch.

I attach a model for reconciliation PeaceNet-Kenya has shared with the TJRC at a formal meeting at their offices at Delta. In it, we shared with the commission five key credibility concerns that must be conclusively addressed if we were to come out of this process a reconciled nation.

These include leadership; issues under consideration; accessibility by both victims and alleged perpetrators; independence and certainty over implementation of the recommendations (reparation for victims and holding perpetrators accountable through various mechanisms- including of course amnesty).

What the nation is currently debating is just but one aspect of this five pronged credibility question that PeaceNet has put formally to the commission: Leadership. Even here, the ongoing debate has tended to be reduced to the credibility of the chair only. We think this is narrow.. but we also appreciate that as an advocacy strategy, it is probably the most perfect mechanism you can use to achieve maximum impact… notice also that conversely, it is possible to scatter the sheep by eliminating the Sheppard! I am conscious to the fact that up-to where we are, this campaign has not been infiltrated by those keen to disrupt the TJR process altogether- those who have always believed that we are better off leaving the graveyard of previous injustices intact- for we lack the capacity to clean it up once it is flung open and its contents exposed. If this assumption is true, this crowd must nonetheless be celebrating how the tide is good in their favor, now that the commission’s credibility is almost irredeemable and the whole process facing imminent collapse.

Could we pose to ask at this stage: were we set to fail anyway- by the process of selection and the timing of the naming of the commissioners as well as the whole process of making this process come into being, or was there a trap we have willfully walked into oblivious of the consequences to the truth and justice we have yearned for since independence?

I do not speak for PeaceNet on this matter, but I guess a choice had to be made, knowing very well that the credibility debate is so much about the chair as it is also about the other commissioners collectively and the commission as an institution. This choice needed to be one that broadens the debate without puncturing the existing momentum and it had to focus attention on the entire commission, and all the commissioners to demonstrate leadership- and prove collective credibility as an institution and people charged with leading this historic process.

I appreciate the view that PeaceNet-Kenya’s position on the raging debate must be very clear…. and it is. This excerpt of the statement will attest to that

“….While recognizing that major concerns have been raised against some of the individual Commissioners, it should not be lost to Kenyans that we also have a responsibility to safeguard the institution of the TJRC. With regard to this matter, we call on the Commissioners to also collectively appreciate that they cannot ignore the issues of credibility put before them. More than anyone else, the Commissioners need to demonstrate that they understand that reconciliation applies to everyone….. we call on the Commission to urgently seek a process to acknowledge that the issues of credibility are paramount, and any further procrastination will most definitely lead to a futile exercise at the expense of the noble mandate of this Commission. We call on the Commissioners to make difficult decisions to safeguard this process for the interest of all Kenyans”.

Yes, PeaceNet-Kenya has adopted the position that we will continue to appeal to the conscience of the commissioners because we believe they have capacity to listen to their conscience and act in the best interest of the nation and the commission by not subjecting it to opportunistic maladies whose eventual consequence will be a disintegration of the TJR process.

The divisions we read; the threats of resignations; the fact that some commissioners are blowing cold and hot at different turns; the disillusionment among commissioners; the fact that the commissioners are now at a loss as to how to face the very population they are expected to serve; the sense that we may as well lose a lifetime opportunity to correct historical wrongs if those against correcting historical wrongs could hijack this process all combine to compel us to begin the search for better approaches to dealing with this problem; kind of thinking outside the box as you taught me religiously, knowing very well that at the end of it all, all of us have a duty to assist each of us to correct the problem, not fix the person; to restore humanity to all of us- the chair, his accusers, sympathizers, everyone. What better chance do we have to prove that as a nation we have this capacity. For me, TJR process is not a contest between right and wrong… but rather, about a national rebirth. As they say, it is probably the most difficult experience, labour pains… the kind that we are subjected to right now. If disagreement on the suitability of the chair is big, then we must brace for the reality that agreeing on our historical truth will be a much more problematic issue.

The questions are out there, the search for solutions is on, there is no one fit all solution yet the options before us are quickly diminishing. May the best solution that will serve this nation be chosen. One thing is however definite for me. All truth commissions are official, state sanctioned, temporary, quasi-judicial mechanisms. We can only make what we have better. Experience in this country, and there are plenty, is that parallel, or peoples processes are much more fragile and vulnerable to internal incoherence. I may be wrong!

Martin Luther King Jr would put it, “refrain from satisfying our thirst for freedom (and justice) by drinking from the cup of bitterness, hatred and vengeance”

My ten cents