KNCHR POSITION ON AMNESTY FOR ALLEGED PERPETRATORS OF POST-ELECTION VIOLENCE

KNCHR POSITION ON AMNESTY FOR ALLEGED PERPETRATORS OF POST-ELECTION VIOLENCE
I. Introduction
Recently, a debate in Kenya has raged regarding whether persons arrested in the wake of the post election violence should be prosecuted or granted amnesty. These persons comprise mainly youths from Rift Valley, Nyanza, Coast, Central and Nairobi Provinces who are alleged to have committed diverse offences between December 27th and February 28th. There are conflicting figures as to how many youths are being held and the offences they are alleged to have committed. According to a statement attributed to Agriculture Minister Ruto, around 12,000 youths are being held in police and prison custody following the violence. However, the police dispute this figure and claim that less than 1000 people are in custody.
II. The different shades of arguments
1. One argument made, supporting the case for amnesty, is that by doing what the youths are alleged to have done, they contributed to the formation of the grand coalition government and it therefore does not make sense to have the youths languishing in jail while the politicians they ‘fought for’ enjoy power. It has also been argued that holding the youths in custody discriminates against the poor since politicians who mobilized the youths to those actions are themselves enjoying their liberty.
2. Another argument advanced is that ‘host communities’ are unlikely to cooperate with the return of the internally displaced people (IDPs) while their own sons are languishing in jail. It is a compelling argument from the point of view that the situation is still volatile in some of the regions with some locals threatening not to allow the IDPs to return. Indeed violence has broken out since the return of some IDPs in places like Molo. However this argument is countered by those who say that Kenyans have a right to property and to settle anywhere in the republic and the government should not be blackmailed into releasing alleged perpetrators on the pain of communities sabotaging the IDP return programme.
3. A third argument, rejecting amnesty, suggests that granting amnesty to the suspects would encourage impunity and threaten the rule of law. This would be tantamount to abolishing civilized society and going back to the rule of the jungle. This would also encourage organized violence.
III. Amnesty in other jurisdictions

AI – Kenya: Concerns about the truth, justice and reconciliation bill

Source: Amnesty International (AI)

Date: 22 May 2008

Kenya: Concerns about the truth, justice and reconciliation bill

Introduction

Amnesty International has a number of serious concerns about the Truth, Justice and Reconciliation Commission Bill of Kenya (the Bill), published on 9 May 2008 and due to be submitted for debate in Parliament. (i)

Amnesty International recognizes the decision to establish the Truth, Justice and Reconciliation Commission in Kenya as an important first step towards ensuring accountability for past human rights violations and guaranteeing that victims of those violations know the truth, obtain justice and are provided with full reparation.

The organization welcomes the provisions in the Bill intended to ensure that the establishment and functioning of the future Truth, Justice and Reconciliation Commission (the Commission) comply with international law and standards. Such provisions are discussed below (see para1).

However, Amnesty International is seriously concerned about several aspects of the Bill, which do not comply with international law, standards and best practices. These include:

NPI-Africa: Truth and Reconciliation Commissions in Africa: Lessons and Implications for Kenya

Truth and Reconciliation Commissions in Africa:

Lessons and Implications for Kenya

A Briefing Paper

By George WachiraI and Prisca Kamunge

This brief indicates some lessons and problems from TRC experiences in Africa and makes

recommendations for Kenya. Drawing on experiences from South Africa, Sierra Leone, Liberia,

Ghana and DRC, this brief cautions that previous TRCs have not been as successful as is

sometimes assumed While the South African TRC (SATRC) gave new prominence to TRCs (or

TJRC in the case of Kenya3), it has led to a fzxation on a particular form of transitional justice at

the expense of careful consideration of the goals sought and the context of the specific transitions.

For the Kenyan TJRC to succeed it will have to respond to some of the problems identified.

I LESSONS, PROBLEM AREAS AND RECOMMENDATIONS

Lesson and Problem Area 1:

TRCs Have not been as Successful as is often Assumed as tools

for truth, justice, reconciliation or national unity.

This is because:

o Victim-focused recommendations are ignored, delayed or only partially implemented.

o Citizens’ expectations are often outside the mandate and capacity of the TRC.

o Victims come before the TRCs in large numbers while perpetrators tend to stay away

o Perpetrators quickly get amnesty while the threatened prosecution is never followed up

o TRCs have often been politically-correct, focusing only on non-controversial truth

o Given their poor follow-up on recommendations, particularly those pertaining to

reparations to victims in the context of great material need, TRCs are increasingly viewed

as facilitating the very impunity they set out to reverse as perpetrators get away without

accountability while the victims’ needs are not met

Recommendations:

Ø Clear goals must be articulated and communicated to the public as to what the TIRC

hopes to achieve with regard to each of the three elements (truth, justice and reconciliation).

Ø A commitment by the government to implement recommendations and undertake

necessary follow-up should be secured up front.

Ø The TJRC Act should provide for an Independent Follow-up Mechanism with a clear

mandate to spearhead the implementation of the TJRC’s recommendations.

Ø The government’s commitment to cooperate and support the process and follow-up

should be secured through a presidential order, as recommended by the Makau Mutua

Task Force on the TJRC in 2003.

Ø Public expectations can be managed through a careful awareness campaign, wide

consultations and clear articulation of the purpose and role of the TJRC, and its relationship, synergies or linkages with concurrent commissions, competent institutions

and follow-up mechanisms (where applicable).

Ø In its legislation and design, the TIRC should have clearly stated linkages with other

related institutions or commissions such as the Office of the Ombudsman, the Lands

Commission or the Kenya National Commission on Human Rights. The framework for

such collaboration and linkages should be worked out before the commission concludes

its work.

Lesson and problem area 2: Overriding Expectations of Material Compensation

Kenya has to weigh carefully what the primary purpose of the TIRC is to be.

TJRC: NPI-Africa briefing-paper – Lessons and Implications for Kenya

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

KNDR – Panel of Eminent African Personalities – Press Statement

PRESS STATEMENT

Panel of Eminent African Personalities

Nairobi, 29 April 2008

A useful and constructive session of the Kenya National Dialogue and Reconciliation took place today. It was chaired by Hon. Deputy Prime Minister Musalia Mudavadi in the absence of Ambassador Oluyemi Adeniji, who is in Addis Ababa on an African Union related mission.

The session dealt with Agenda Item Four on long-term issues and solutions; the Commission of Inquiry on Post-Election Violence; the Truth, Justice and Reconciliation Commission; the National Ethnic and Race Relations Commission; the draft Coalition Agreement; and the Constitutional Review Bill.