NPI-Africa : TJRC – Truth and Reconciliation Commissions and Transitional Justice in Africa: Lessons and Implications for Kenya

NPI-Africa

A Peace Research Organization

Background Paper: April 2008

Truth and Reconciliation Commissions and Transitional Justice in

Africa: Lessons and Implications for Kenya

By George Wachira1 and Prisca Kamungi2

This Policy Brief is intended to contribute to the public debate on the proposed Truth,

Justice and Reconciliation Commission (TJRC) for Kenya. The content is informed by

ongoing research being carried out by NP I-Africa and the West Africa Network for

Peacebuilding (WANEP). Focusing specifically on respondent’s expectations and

perceptions, the research aims at drawing out lessons from transitional justice

experiences in Africa, in particular the increasingly popular TRC approach. The

research examined three countries that have concluded their TRCs or equivalents

(Ghana, Sierra Leone and South Africa), one that is in the process of implementing

(Liberia) and two that are still considering setting up TRCs (DRC, Kenya). Respondents

were drawn from a wide sample of victims, experts, former commissioners, civil society

actors, government officials, perpetrators, individuals who gave testimonies or submitted

statements to the commissions, relatives of victims, care professionals and researchers,

among others.

I. Introduction

The debate on the formation of a TRC3 in Kenya has been before the public for some

time. In the lead-up to the 2002 elections that marked the end of the 24-year regime of

Daniel Arap Moi, opposition politicians and civil society activists advocated for a Truth

and Reconciliation Commission (TRC) to address past human rights violations. After the

opposition’s victory, the new government appointed a Task Force in 2003 headed by

Prof. Makau Mutua to seek the public’s views on the formation of a TRC.4 The Task

Force recommended the formation of a Truth, Justice and Reconciliation Commission

(TJRC) to investigate:

Ø political assassinations and killings

Ø Massacres and possible genocides

Ø Political violence and murder of democracy advocates

Ø Torture, exile, disappearances, detention and persecution of opponents

Ø Rape

Ø Politically instigated ethnic clashes and

Ø Violations of economic, social and cultural rights

The Task Force further recommended the formation of an independent commission to

investigate violations during the Mau Mau liberation struggle. Despite the reported

widespread support for it, the TJRC was not set up; instead, the government instituted

other transitional justice options such as limited lustration (removal or barring from office

of implicated individuals), targeted assistance to victims, institutional reforms, and

commissions of inquiry and task forces. The debate came back to lite brietly in the runup

to the December 2007 elections, but up until January 2008 the possibility of the TJRC

ever being formed looked remote.

Following the unprecedented political crisis and violence triggered by the dispute over

the December 2007 presidential election and the international mediation that followed,

the parties to the dispute signed the National Reconciliation Accord in February 2008.

One of the provisions of that agreement is the formation of a TJRC. It recommends that

the TJRC should date its work back to 1963, as did the Makau Task Force. With the

entrenchment of the agreement into the constitution in March 2008, the formation of the

commission is now a certainty. Its performance and delivery are not. What can Kenyans

expect of the TJRC and how can they hold the government and the politicians

accountable for the realisation of the three pillars the commission promises, namely,

truth, justice and reconciliation?

Citing evidence from countries such as South Africa, Sierra Leone, Liberia and Ghana

this brief indicates that previous TRCs have not been as successful as is sometimes

assumed. Many people’s expectations were not met either because the recommendations

were not implemented, or their expectations were outside the mandate and capacity of the

TRC. While the South African TRC (SATRC) captured the imagination and gave new

prominence to TRCs it has led to a fixation on a particular./i)rm of transitional justice at

the expense of more careful consideration of the goals sought and the context of speci fic

transitions.

Drawing on experiences from six African countries, NPI-Africa issues this paper to offer

some perspectives on the TRC as a transitional justice model and intorm public debate in

Kenya. The brief suggests we approach TRCs in Africa with a critical view; it

nevertheless recognises that a TJRC in Kenya is now a./ail accompli. It therefore offers

recommendations on the design and purpose of the TRC/T JRC, requisite enabling

environment and political will, managing expectations, sequencing from truth recovery to

futuristic safeguards against impunity~ and spcci fic concerns with regard to reparations

and reconci Iiation.

TJRC Debate – Background Paper

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