Hard Task for the Kenyan TJRC

Unless some of our top political leaders have a secret agenda, the hope for a long lasting peace in Kenya lies in the two Bills published by the Minister for Justice, National Cohesion and Constitutional Affairs, Martha Karua. According to the Memorandum of Objects and Reasons the first one – The National Ethnic and Race Relations Commission Bill, 2008 – seeks to establish a National Ethnic and Race Relations Commission that will be charged with the responsibility of facilitating and promoting equality of opportunity, good relations, harmonious and peaceful co-existence between the various Kenyan ethnic communities.

Such a Bill could only be opposed by those who have reaped political benefit from bad relations between communities. There are quite a number of MPs who would never have been elected to Parliament without sowing seeds of ethnic discord in their constituencies. They promised their voters to inherit the well stocked shops and fertile farms belonging to “foreigners” living in the Rift Valley. Yet the majority of the so called “foreigners” were actually Kenyans of different ethnic groups and the shops they had were established through sheer hard work. The majority of the fertile farms they owned were actually bought from the local communities decades ago.

Martha Karua’s memorandum says the Bill is borne of the realization that the lasting peace and co-existence cannot prevail in Kenya unless the various Kenyan communities cultivate goodwill among each other and have equal access to various opportunities that may arise without discrimination grounded in ethnicity. The memorandum further says the Bill recognizes the need to deal effectively with the negative aspects of tribalism and ethnicity which has pervaded various levels of Kenyan society. Very noble words indeed! But the question is how the country can be expected to “deal effectively” with the negative aspects of tribalism when that aspect happens to be the side of some powerful MPs’ bread that is buttered.

The first signs of resistance against dealing effectively with negative ethnicity were shown by some MPs who openly resisted the resettlement of IDPs in their former farms and homes. They were coming up with some ridiculous conditions such as a blanket amnesty for suspected murderers and arsonists. No one says there should be no amnesty for some innocent participants in the mayhem that befell our country soon after the messed-up elections of last year. But that amnesty should not be extended to some people who committed the most heinous crimes this country has ever witnessed.

Recent utterances of some politicians reveal that they know something about who masterminded the crimes; otherwise they would not be calling for the release of “heroes who fought for democracy”. A terribly dangerous example will be set by releasing people who committed mass murders and burnt other people’s property at random .If and when they get away with this, we will all be living at the mercy of hooliganism and organized gangsters .

The demand by some politicians to have the perpetrators of post election crimes set free clearly also indicates that the militias are actually on hire by very important people. These VIPs owe their top jobs to hooligans who terrorized voters during election times. If any MP opposes this particular Bill which Martha Karua says emanates from the deliberations of the National Dialogue and Reconciliation Committee, that MP cannot be taken seriously when he or she condemns tribalism in our society. Indeed Martha Karua reminds us that the dialogue was formed after a political crisis ensued following a dispute on the outcome of the Presidential elections held on 27th December last year.

Martha Karua happens to be one of Kenyan politicians who take a very firm stand in whatever they believe in. The politicians are normally called “hardliners” and they are there in both the PNU and ODM camps. Whatever she says, therefore, is scrutinized thoroughly to find out whether it is meant to promote her political beliefs. This Bill could and indeed should be subjected to such a scrutiny.

Whatever conclusion people make about what Martha Karua says, she is absolutely right when she reminds us that last year’s political crisis brought to the surface deep-seated and log standing divisions within the Kenyan society and that to heal those divisions, a raft of constitutional, legal and political measures have to be taken. The publication of the two Bills is the first step by the Minister towards bridging the separations in our society.

The second Bill – The Truth, Justice and Reconciliation Commission Bill, 2008 – is a bit more controversial. It is difficult to establish justice without the truth being known. From time immemorial Governments all over the world have been economical with the truth and the Kenyan Government is not the exception. From April last year, for example, a Freedom of Information Bill was published but very lackadaisical efforts have been taken by the authorities to change it into anAct.

So instead of people’s right to know being promoted by the Government, it enforces the notorious CAP 187 Official Secrets Act. This horrible Legislation is an act of Parliament intended to provide for the preservation of State Secrets and State Security. It sounds very colonial indeed but surprisingly it is not. The Act, in fact, came into effect on the 16th February, 1968. This was long after Kenya attained its independence which says a lot about our African Governments.

For a TJRC to be effective an enabling environment must be created in which the truth can be told without any fear or favour. But for that to be done properly, that truth must be available in the first place. According to Clause 5 (a) of the Bill there are intentions of establishing accurate , complete and historical records of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired , between 12th December , 1963 and 26th February 2008.

That sounds very noble indeed but the Bill has some clauses and sections that appear to be creating hindrances for the Commissions that will be established ,to get access to some information. The Commissions will , for example , according to Section 26 (1), not have any powers to search any premises suspected to contain any record or property or thing relevant to investigation without and ex-parte application to the Court for a warrant to conduct such a search. Now we all know what can happen to any proceedings in our courts.

May be the most controversial part of the second Bill is to be found in Section 38 (1) allowing the Commission to make amnesty recommendations for any violations committed during the period 12th December , 1963 to February 28, 2008. In the Bill’s Memorandum of Objects and Reasons, Martha Karua rightly says that the intended law is borne of the realization that lasting peace and co-existence cannot prevail in Kenya unless historical injustices and violation and abuse of human rights have been addressed. How is that possible when the team to perform the task of seeking justice is made to jump so many huddles? How is that possible also when amnesty will be so easy to obtain?

It is the hope of many Kenyans that a lot of skeletons in our cupboards will be exposed by the TJRC which will make its hearings, according to the Bills’ Section 25 (1) , in public. Unfortunately this section is immediately contradicted by subsection (2) which creates provisions for some proceedings to be heard in camera. Which means some secrets about a few individuals who have been looting this country since independence will always be secrets. What a shame!

The only consolation is the fact that the two Bills are not being rushed through Parliament and there will be plenty of time to discuss them and amend them accordingly at the appropriate time.