Problems and Purpose

In establishing its authority in Kenya, the British Colonial administration was responsible for violence and gross violations of human rights between 1895 and 1963 in Kenya. The colonial government also adopted a divide-and-rule approach that created a negative dynamic of ethnicity, while also alienating large amounts of highly productive land from the local population and removing communities from their ancestral lands. Historical grievances over land constitute the single most important driver of conflicts and ethnic tension in Kenya. The Commission identifies that President Jomo Kenyatta (1963-1978), President Daniel Arap Moi (1978-2002), and President Mwai Kibaki (2002-2013) presided over governments that were responsible for numerous gross violations of human rights. State security agencies have been the main perpetrators of bodily integrity violations of human rights in Kenya. Women and girls have been the subject of state-sanctioned systematic discrimination. Children have been subjected to untold and unspeakable atrocities despite the special status afforded to children in Kenyan society. Minority groups and Indigenous people suffered state-sanctioned systematic discrimination during the mandate period including political participation, access to national identity cards, collective punishment, the violation of land rights, and the right to development.

The Commission sought to investigate and recommend appropriate action on human rights abuses committed between December 12, 1963, and February 28, 2008, when President Kibaki and Prime Minister Raila Odinga signed the peace and power-sharing deal following the post-election violence that ensued. The Commission served to establish as complete a picture as possible of the causes, nature, and extent of the post-election violence, including unresolved injustices such as the distribution of land and state resources. The Commission was mandated to recommend policies with regard to reparations for victims, to recommend prosecutions and create institutions conducive to a stable and fair society.

Background History and Context

Kenyan independence from British rule in 1963 signified an end to practices that had been institutionalized, such as racial segregation, detention camps, torture, massacres, unlawful killings, and similar practices under colonialism. However, what followed was a period of political repression and systematic violations of human rights [1].

Under the leadership of President Jomo Kenyatta, the Kenyan political administration returned to the ways of British colonial rule. The government and Kenya African National Union (KANU), the ruling party, enforced repressive colonial laws and became intolerant to political dissent [2]. In addition, corruption in the land redistribution process left many Kenyans landless or displaced.

Following the death of Kenyatta, Vice President Daniel Toroitich Arap Moi took over the presidency and maintained the administrative intolerance of political opposition [3]. In 1982, the Kenyan government made the country a one-party state, thus making KANU the only political party. Political activists who expressed opposition to President Moi’s rule were subject to detainment and torture.

In 1991, Moi acquiesced to demands for a multi-party state, which resulted in political and ethnic violence orchestrated by the government [4]. By 2002, KANU was removed from power by the National Rainbow Coalition (NARC), leaving Kenya “burdened by ghastly accounts of gross violations of human rights and historical injustices” [5].

Leading up to the 2007 election, political campaigns were corrupt and employed hate speech. Violations of the electoral code, the misuse of public resources, and the inciting of violence characterized the election process. Post-election violence resulted in the deaths of over 1,100 people, approximately 3,000 rapes, and the displacement of 350,000 people over a two-month period [6].

Organizing, Supporting, and Funding Entities

The Government of Kenya was expected to provide a significant portion of the Commission’s budget. Other funding came from donors, foundations, or other independent sources [7]. The Ministry of Justice managed the Commission’s funds during its first year of operation, however, at times, the Commission had to seek loans from its Commissioners. While the process was meant to be national, it was greatly underfunded by the government.

In July 2011, the Commission was accused of corruption when reports surfaced in the media alleging financial improprieties within the Commission, however, the Report asserts that the media was misinformed [8].

Participant Recruitment and Selection

According to the TJRC Agreement, the Commission would consist of seven members with gender balance taken into account. 

Four commissioners are Kenyan citizens and the three other commissioners are from Ethiopia, the United States of America, and Zambia, nominated by the Panel of African Eminent Personalities, who helped negotiate the power-sharing deal in Kenya.

There were three steps to creating the Commission: the selection and appointment of the Commissioners, their inauguration, and the setting up of the Commission. The selection of the Kenyan Commissioners was done through a consultative process that began with a Selection Panel of nine people [11]. The Commission required that the Commissioners had knowledge and experience in human rights law, forensic auditing, investigations, psycho-sociology, anthropology, social relations, conflict management, religion, and gender issues [12]. They must also not have been involved with the human rights violations being investigated by the Commission.

The Commission received 254 Commissioner applications and completed forty-seven interviews to finally select nine original Commissioners who were inaugurated on August 3, 2009.

In August 2010, the Commission recruited 304 statement-takers to collect witness testimony. As for witnesses, the public was invited and encouraged to participate for the purpose of educating the public.

Methods and Tools Used

Due to financial and resource restraints, the Commission did not begin operating until 2010, although it was established in 2009. The two-year operational period granted to the Commission had to be extended three separate times to accommodate for the workload of conducting and processing hearing sessions and producing a final report. In so doing, the Commission collected the largest number of statements of any truth commission in history.

The TJRC Agreement outlined the way in which the Commission would operate:

• The Commission would inquire into human rights violations committed by the state, groups, or individuals, economic crimes, politically-motivated violence, and community displacements
• The Commission would inquire into events that took place between December 12, 1963, and February 28, 2008
• The Commission was to receive statements from victims, witnesses, communities, interest groups, persons directly or indirectly involved in events, or any other group or individual; undertake investigations and research; hold hearings; and engage in activities as it determined to advance national or community reconciliation
• Blanket amnesty would not be provided for past crimes
• The Commission would complete its work and submit its report within two years

The Commission would also reflect the following principles and guidelines:

• Independence: The Commission would operate free from political or other influence
• Fair and balanced inquiry: The Commission would ensure that it sought the truth without external influence
• Appropriate powers: The Commission was given powers of investigation, including the right to call persons to speak with the Commission and powers to make recommendations to be considered and implemented by the government or others
• Full cooperation: Government and other state offices were to provide information to the Commission on request
• Financial support: the parties were to encourage strong financial support to the Commission and the Government of Kenya was expected to provide a significant portion of the Commission’s budget

What Went On: Process, Interaction, and Participation

Advocacy for a truth commission initially emerged during the campaigns for a multi-party government, however, the process was stopped and started multiple times and did not begin until 2009. The Truth, Justice and Reconciliation (TJR) Act required that the Commission operated for a period of two years, however, the Commission’s time frame was extended multiple times.

The Commission used primary and secondary materials in its research, consisting of statements, memorandums, and exhibits received from victims and witnesses, materials from the National Archives and from government registries, work by academics, and reports of relevant organizations and institutions [11].

The Commission conducted individual hearings, women’s hearings, thematic hearings, focus group discussions, site visits, methods of reconciliation, and report-writing.

Influence, Outcomes, and Effects

The establishment of separate public memorials commemorating the victims of the Shifta War, as well as the lives of Pio Gama Pinto, JM Kariuki, Robert Ouko, Father Antony Kaiser, and Crispin Odhiambo-Mabi. After consultation with victims of torture, Nyayo House was also converted into a memorial. Public and unconditional apologies by the President, the State security agencies, the British government, and the Judiciary to the people of Kenya for their roles in causing or not preventing all injustices and gross violations of human rights.

In addition, the Kenyan government paid reparations to victims and survivors and created a National Human Rights Day on December 10 (International Human Rights Day) to promote respect for human rights in Kenya. The establishment of the International Crimes Division of the High Court was fast-tracked, and the national legal aid scheme was expanded to cover the entire country to encourage individual victims of human rights violations who have exhausted local remedies to directly access the African Court. 

The Commission also recommended that the Ministry of Lands or other appropriate government authorities immediately begin a process of surveying, demarcating, and registering all remaining government lands, including those that were formerly owned or managed by local authorities, all protected wildlife areas and river banks, and other public lands.

Because Kenya’s TJRC is recent, it is difficult to evaluate its success thus far.

See Also

Link to the Report of the TJRC: https://hmcwordpress.humanities.mcmaster.ca/Truthcommissions/wp-content/uploads/2018/11/Kenya-TJRC_Volume_1-4.pdf

References

[1] Truth Justice and Reconciliation Commission (TJRC), Kenya, Report of the Truth, Justice and Reconciliation Commission, Vol. 1 (Nairobi, Kenya: 2013), 4.

[2] Report of the Truth, Justice and Reconciliation Commission, 4.

[3] Ibid.

[4] Ibid, 5.

[5] Ibid.

[6] Ibid, 14.

[7] Ibid, 20.

[8] Ibid, 34.

[9] Ibid, 22.

[10] Ibid, 23.

[11] Ibid, 94.

Notes

Truth Justice and Reconciliation Commission (TJRC), Kenya. Report of the Truth, Justice and Reconciliation Commission. Vol. 1. Nairobi, Kenya: 2013.

The first version of this case entry was written by Sarah Slasor, McMaster University.