DRAFT TRUTH, JUSTICE AND RECONCILIATION BILL – TJRC Draft Bill

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ZERO DRAFT

28th March,2008
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—

(a) dies;

(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.
Vacancy.
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
chairperson.

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

misbehaviour or misconduct; or

incompetence.

(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
Commission

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
Commission
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.

Privileges of
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;

SCHEDULES

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

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.

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