Why Kenyans Must Embrace and Support the TJRC

This article is part of a debate organized by Oxford Transitional Justice Research (OTJR) in collaboration with Moi University (Eldoret) and Pambazuka News. A selection of essays based on this debate will be published in an edited volume by Fahamu Books. For PDF documents of the debate please go to www.csls.ox.ac.uk/otjr.php.

The debates over transitional justice in Kenya have been largely silent on the issue of the Truth, Justice and Reconciliation Commission (TJRC). It is evident that beyond the initial commentary at the TJRC’s inception – when the appointment of some commissioners was vigorously queried – much of the attention has focused on possible prosecution of key perpetrators either in The Hague or by the Special Tribunal for Kenya. One could attribute this fixation with The Hague, Special Tribunal and the envelope delivered to the Prosecutor of the International Criminal Court (ICC) to the contentious nature of the process, and the fact that the Prosecutor’s sights are trained on some Kenyan principals. However, I suggest that this sole focus on prosecutions – and in particular the ICC – is somewhat misguided. Here, I consider, – based on the strength of several legal, policy and practical considerations – why Kenyans need to embrace and own the TJRC.

First, we need a comprehensive view of justice. While prosecutions are necessary, international law requires that we prosecute at least the most serious crimes and those who bear the greatest responsibility. But justice is not complete by only jailing a handful of perpetrators. We need approaches that will attend to the concerns of victims such as reparations, rehabilitation and truth telling. We also need approaches that address the broader national questions that foster inter-ethnic rancor, impede peaceful coexistence and national reconciliation.

Second, the ICC can and will only prosecute a few individuals. Even locally, a Special Tribunal and national courts cannot prosecute all of those who wielded machetes, stones and homemade guns. We must find other options of accountability. This is what the recent endorsement by the ICC Prosecutor for a “˜three-tier approach’ is about.

Third, we must internalize the fact that trials will only yield judicial truth: truth relating to whether a particular individual is guilty or not for a particular crime. Trials will not tell us enough about context and history. Trials reveal little – and will leave unopened the closets of Wagalla, Likoni, Molo, Burnt Forest, Elgon and other places. Crucially, the law will prevent us from prosecuting most – if not all – crimes committed decades ago because of the problem of retroactivity. But at the TJRC, we can open those closets and ensure that the victims of Wagalla at least know the truth, and have an opportunity to receive reparations. We may know who perpetrated the violence, and find ways of ensuring they account for it: for instance we can ban the public figures among them from running for public office.

The TJRC’s process should not be equated to impunity. One of the key functions of the TJRC is to ensure this global truth comes to the fore, is recorded and committed to national memory. It will ensure that no one re-writes history to suit their own beneficial narrative. It will ensure that we come to terms with the past and begin to find ways of moving forward. The events of 2007 occurred partly because we have too many unaddressed instances of injustice.

Fourth, we must embrace the TJRC because we as a nation called for it. We must support it because we need it. The TJRC is not a foreign imposition. It is not even an imposition by politicians or the Kofi Annan talks. The TJRC has deep roots in battered communities around the country. Since at least 1992, Kenyans thirsted for truth. The Mutua Task Force in 2003 said as much. When Kenyans spoke to the Ghai Commission on constitutional reforms (CKRC), many said the same. It is safe to conclude that in 2003, the TJRC’s creation was merely suspended because of political games.

Fifth, truth commissions – unlike trials – operate flexible procedures that allow for the widest possible opportunity for victims to participate, tell their stories and confront their tormentors in a less adversarial and friendly forum. Access to justice is of paramount importance. Few victims can locate The Hague on a map. Even fewer will participate in The Hague or receive reparations should trials commence. The TJRC can – and should – bring a keen listening ear and justice to a town they know near them.

Sixth, as the cases of South Africa, Sierra Leone and others demonstrate, truth commissions have their flaws. While we may want as many people as possible – if not every perpetrator – to be prosecuted for crimes, this may not be possible for some of the reasons suggested above. Further, insisting on prosecutions may not foster truth telling. That is why the Truth, Justice and Reconciliation Act that creates the TJRC, provides that those who testify before the Commission will not incur criminal or civil liability. I remain convinced that without a TJRC, where people can talk without fear of prosecution and other harm, we are bound to repeat the murderous folly of 2007-2008. Truth can set Kenyans free.

The TJRC can only succeed if we want it to succeed. We may not like some commissioners for a range of reasons, but we can make the process our own. We must publicly and critically ask piercing yet constructive questions of the TJRC. Sometimes the sheep know best where the grass is greener, and the shepherd must follow.

However, truth searching must be managed in a transparent and accountable manner. The hunter must have the right tools, and must know their craft. It is important that the Commissioners, especially those inexperienced in matters related to truth commissions, gain a deep understanding of the relevant issues. The TJRC must have the right gear that will enable it not only to open, scrutinize and record what lies within closets of historical injustice, but to commence a process though which at least some of its key consequences can be addressed. It matters what you do with the truth you have unearthed. For these reasons, the TJRC must be supported, but it cannot stand alone. The ICC is relevant, as are the Special Tribunal and the national courts. Moreover, this comprehensive process must be supported by other related measures.

We must address the concerns of victims. This requires different forms of unwavering government and civil society commitment. Those currently grappling with matters of constitutional and other institutional reforms must act diligently and a sense of historic responsibility. They must consider themselves part of, rather than separate from, the broader transitional justice project that is unfolding in Kenya.

* Dr Godfrey Musila is a senior researcher at the Institute for Security Studies in Pretoria, South Africa. A version of this opinion appeared on the Standard on Wednesday 21 October 2009

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8 thoughts on “Why Kenyans Must Embrace and Support the TJRC

  1. The rebuttal can be less wordy.

    Unfortunately, the TJRC has been heavily discredited by the very stain of its birth; and this stain was not due – as Musila incorrectly alleges – to the selecton of the commissioners, but rather the fact that the main and prevalent motive for the creation of this TJRC was the exact opposite of its purported agenda. Namely, a perpetuation of impunity, and a cover-up of truth. Wananchi have understood this better than academics.

    Secondly, it is true that beyond the ICC, a Special Tribunal (presently this look like a hybrid tribunal, finally freed from the dysfunctional fetters of Common Law) cannot put all suspects and all the presumptively involved through a pipeline. Kenya had the Pipeline once, during the last Emergency, and that was enough of a dire lesson. But the argument is too short, because that is a limitation of all criminal justice in general.

    Thirdly, no court, no trials and no judicial processes can replace or subtitute diligent historical research, nor the duties and chances of a TJRC. And indeed, the legal venue must not and shall not be seen as a contrary option. Rather, a TJRC would be a much-needed complement to the inborn shortcomings and limitations of the law (although not this specific one).

    Fourthly, a “nation” did not call for this TJRC, as Musila alleges. Who called, was a small group of intellectuals, some self-serving and busybodish, ploughing their little demarcated fields and waiting to harvest at last, and some others altruistic and idealist. The nation – Wanjiku – still feels alienated and suspicious. The nation has seen many commissions, and has seen many of them unearth parts and morsels of truth; but in not a single case, has the nation seen credible action and change spring from these efforts.

    Fifthly, it is indeed a shame that the reasonable call for truth, justice and reconciliation has become converted into the snorting trumpet sound of impunity. But that is the Kenyan establishment. What is left now as an option, is to bury this mishapen and discredited changeling for good, and to conceive, carry, labour and give birth anew.  Let us hope that the womb is still fertile.

  2. What choice do we have? The commission has been formed and we can debate about it ad nauseam but the fact of the matter is it will soldier on regardless of what is said about it. So then… do we simply roll over and let things continue as they have been going on for decades? Decidedly not. I greatly believe in change from within. And further that change begins in the mind. It is true that Kenyans have seen commissions come and go with little or no positive result. But we can change that is we support this commission. Though they do not realize it the people truly have the power. let them hold this commission accountable and support its work and we may truly be surprised. Call me an idealist if you will and i will answer you that i would rather laugh than cry. I will live any day of my life as an optimist rather than wallow in the inherent pessimism. Good Christians that we are we say that you reap what you sow. Therefore, let us reap hope, justice and truth and we will sow a truly united nation. Cogito ergo sum. I think therefore i am. In our very thoughts let us be as one.

  3. The – long overdue and far too late – resignation of Betty Murungi and the present Kenyan headlines made me revisit my earlier statement. More and more demands to disband this specific TJRC altogether are being heard now; and they are right. The academics will be the last ones to admit this, though.

  4. I agree,
    The – long overdue and far too late – resignation of Betty Murungi and the present Kenyan headlines made me revisit my earlier statement. More and more demands to disband this specific TJRC altogether are being heard now; and they are right. The academics will be the last ones to admit this, though.

  5. It is bitter irony of history, that the churlish behaviour of one president Uhuru Kenyatta – who as an internationally accused criminal suspect simply “has no time to be bothered” with accepted the TJRC’s final report – could now, ex post, lend some minor dignity and credibility to a discredited commission that never possessed either, during its lifetime.

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