Monday, 18 August 2014

One year after the TJRC Report findings “quest for justice goes on”


President Kenyatta with TJRC Chairman Bethwel Kiplagat when he received the final TJRC Report at State House Nairobi.

Kenya marked one (2014) year since the Truth, Justice and Reconciliation Commission (TJRC) presented its report findings and recommendations over to President Uhuru Kenyatta on 21st May 2013.

The now defunct commission was born from the 2007/2008 Post Election Violence and a desire of Kenyans to see a process, which would address deep seeded grievances and historical injustices.

Since the Presidential Assent to the TJR Act on 28 November 2008 and coming into operationalization on 17 March 2009, the Kenyan citizens saw it as a means through which historical injustices can be addressed and to propose sustainable solutions including redress for victims.

Across the four counties of the Former Western Province, Busia, Vihiga, Kakamega and Bungoma, victims came forth to present their views to the commission and exercise that was done nationally.

In Vihiga County, Pius Ahenda Ogalo is one of the 28 families who were moved to pave way for government offices and bringing up of schools in Mbale and Vokoli.

“We were ejected from our land in very colonial way being told to move out without even being told where we were to settle, we wondered how it would be but we were told to go look for the land we were to settle in ourselves,” said Pius Ahenda Ogalo before the Commission in 2011.

“We were moved in the year 1986 and we were taken to that place where there was no land but stony place, no fertile soil would be seen but small stones that nothing would grow on, even if I took you to the place, you will be full of mercies, you could even run away if you looked at the water we use,” said Ogalo

“We are very peaceful and we need justice to be done and now that you are part of the government please help us we don’t want to act like we want to fight the government we are part of it and there is no need of seclusion,” narrated ogalo.

In Kakamega, Daniel Mukabi was short in his leg joint by a General Service Unit officer during the Post-Election Violence period

“I saw people running from where I was going and I wondered what was happening I continued with my journey not far had I gone that I was shot in my leg and just fell down, I was in form two and the following year I had so many problems while undertaking my exams because of the pains,” said Mukabi as he witnessed during the hearings.

Mukabi said the officer would not listen to any explanation since they acted at a cocked gun to whomever they met along the road as reported by West Fm’s reporter John Kabaka.

“You could not understand what was going on, they would shoot anyhow without knowing whether one was innocent or not, dead bodies flood the road with blood all over, it was terrible. I did my KCSE exams last year (2010) and for the whole time I have been on crutches.”
 
The TJRC commissioners (left) General Rtd Ahmed Farah, Presiding Chair Tecla Namachanja Wanjala, Margaret Shava and Ambassador Berhanu Dinka in Busia County
In Busia, the commission received 30,000 statements recorded and 600 memorandums from victims on issues related to land boundary demarcation disputes, discrimination of women and children.

The commission through Mrs Tecla Namachanja said, “We are struck by how poverty increases people’s vulnerability to abuse Human Rights. We are encouraged by the number of witnesses who have courageously testified to the commission and willing to move forward in healing and reconciliation.”

The Pokot community had spoken of how they had experienced massacres including the famous kolowa Affay that was orchestrated in 1950 during the colonial era leading to the death of over 1000 in the Pokot East region. Further some had spoken of the 1984 Kacheliba massacre committed by the military and police and needed closure of the event.

Consequently, Western Province still reminisces the year 1982, when the late Titus Adungosi then a third year student in the Faculty of Architecture, Design and Development at the University of Nairobi and the first Chairman of the University of Nairobi Students Organization (SONU) was arrested and convicted by the then Chief Magistrate Mr. Abdul Rauf for 10 years imprisonment for sedition on the September 24, 1982 after the failed Kenyan military coup of August 1, 1982 attempt against the former President Moi’s regime.

Wednesday 9th February 1983 when a Court Martial sentenced Corporal Fenwicks Chesoli Odera Obedi to death sitting at Langata Barracks Nairobi for committing treason during the 1st August 1982 coup attempt in Kenya. Others who were killed include: Hezekiah Ochuka, Pancras Oteyo Okumu, Charles Oriwa Hongo, Robert Odhiambo Ndege, Bramwel Injeni Njeremani, Fenwicks Chesoli, Joseph Ogidi Obuon, Charles Mirasi Odawa, Walter Odira Ojode, Edward Adel Omollo, James Odemba Otieno and George Akoth Otila.

The family of the late Adungosi has failed to pursue any civil claims for compensation for its son and the family of the late Chesoli did not know whether they had to make any case for their son before the truth commission.

Questions still linger among the people who seek redress. How can truth give amnesty? These were some of the questions the civil society organizations were asking themselves in a series of meetings held last week under its thematic, “Breathing life into reparations”.


“The National Assembly recently amended the TJRC Act, which created the TJRC, to give itself powers to ‘consider’ the report and oversee the implementation of the recommendations it contains,” said Chris Gitari the head of the ICTJ.

“Although Parliament amended the law to give themselves power to have the report tabled for consideration, there are certain things within the original Act that remain unchanged. One is the timeline of six months. So the question to be asked is, one year down the line, how come that timeline has not been obeyed?” Human Rights Lawyer Njonjo Mue questioned.

Gitari, however, notes, 
“The TJRC Report is in some ways a fair reflection of the mandate and the commission itself. It has many imperfections but also some positive points. It stands as an official record of the state’s complicity in serial human rights violations, a state whose institutions are frequently exposed as corrupt and in callous disregard of the fundamental human rights of citizens.”

“In Kenya already there exist programmes that support vulnerable groups. We have orphan cash transfer programmes; we have programmes that help people with serious physical disability, hunger relief programmes. So already there are mechanisms to draw from and these victims are known. They are in the report,” he added.

Mue differs, “We seem to think we’re at the mercy of Parliament or the AG’s timetable because they’ve talked about considering the report but he will never move. Kenya has a way of translating rights into favours”

“What powers does parliament have with regards of the TJRC report? The government thinks it can re-open the report this is a violation of separation of powers? Parliament does not care about fundamental legal principals. One year down the line, why has the report not started to be implemented? It is legislated that it is the AG's responsibility to make sure this happens,” he posed

“And it would also be good to get the court’s interpretation of the word consideration as amended onto the TJRC Act by Parliament,” he added.

“World over, once an independent commission of inquiry tables its report, it goes to Parliament just for Parliament to take note of it; mainly because government will come back to Parliament for it to vote monies for implementation. But it does not go to Parliament for Parliament to reopen it, to re-examine it and change things they don’t like,” Mue expounded.

Wachira Waheire, one of those who would qualify for reparation according to the TJRC report on account of being a Nyayo House torture victim, chose to go the litigation route as opposed to waiting for the implementation of the TJRC report.

“I lost hope in the report ever bringing me justice. I mean how many reports have been written in this country? All about historical injustices, land or otherwise. And what if anything becomes of them? They’re gathering dust on a shelf somewhere yet there can be no true peace without justice,” he said.

“Just look at the 1992, 1997 and 2008 post-election violence. Just because the violence skipped an election year doesn’t mean anything. Let’s not forget that history has a knack for repeating itself and the only way to truly be rid of a weed is to pull it out from the roots,” he opined.

“I represent 1982 coup detainees and often the victims of historical injustices lack the resources to mount a formidable case and the threshold of proof of torture is higher than the ‘more likely than not’ required by the TJRC report,” he testified.

He noted that, the greatest challenge is the political will to implement even the court decrees.

“I have court awards worth Sh100 million sitting in my office for 20 of the 100 detainees I represent that have never been paid out. The Attorney General is quick to call for the payment of the Anglo-leasing monies so why should we have to hound him to honour the directions of the Kenyan courts in making rights our betrayal? Isn’t that a violation in itself?” he posed.

Christina Alai from the Physicians for Human Rights shared similar sentiments arising from the ongoing Sexual and Gender Based Violence before the Constitutional court representative of eight women who claim to have been sexually violated during the 2008 post-election violence.

“Since the filing of the petition in February 2013, it is when the court said the hearings will begin, then, the office of the Director of Public Prosecutions and Attorney General filed their response in January 2014.”

“This action is the first of its kind. Holding the government responsible for the delay in responding to the sexual and gender based violence offences in the PEV period even after the Waki report had recommended,” she said.

“In terms of precedent, this case seeks to set standards: the eight survivors will be a representative of the many who were sexually violated; it will set standards that will obligate the state to investigate and prosecute the perpetrators and it will make the state to appreciate the aspect of comprehensive justice.”

As a way forward in ensuring the implementation process begins, Helen Scanlon, Gender Justice Specialist said there was need to change the institutional culture of the police.

“South Africa has great laws but, still has the highest rate of gender based violence during peace time in the world! Violations are ongoing. Reparations should not solely look backwards but should address current and ongoing violations of gender based violence.”

Going forward she said it was necessary to manage expectations in addressing concerns of secondary victims.

Can money alleviate harms? How much is enough? Can secondary victims get compensation while victims are alive/after they're deceased?”
        
Cristian Correa, the ICTJ Senior Associate Reparative Justice Program added that there was, “Need for a process of acknowledgement. Why this happened? It is not about sweeping problems under the carpet with some money.”

“Reparations are in its very nature political and requires compromise. This must sometimes happen even by sacrificing strict fairness. Reparations need to communicate to victims that they are valued as members of the community. Think about reparations as both symbolic and material rather than either/or.” 

ICTJ now calls up to civil society and organized groups to engage with the National Assembly in a bid to discuss and agree on an effective and accountable implementation process.

“Kenyan society as a whole needs to discuss these recommendations and use them as a platform to build a stronger society,” says Gitari.

“Let’s hope the glass box in which the TJRC report was presented to President Kenyatta won’t end up being like that glass that’s broken open only in the event of fire,” Njonjo Mue concluded.


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