Why disbanding the truth commission is not an option

By NZAU MUSAU

STANDING on the edge of a valley overlooking Mathare slums, Nancy Wanjiru takes a deep breath as she surveys the canopy of the noisy shanties beneath.

Barely in her forties, her eyes have sunken and the face is already forming wrinkles out of pain she says she has undergone over the past two years owing to a tumultuous election outcome in early 2008.

On the fateful morning of January 3rd, 2008, Wanjiru was attacked, gang-raped, her husband badly cut up with machetes and her house dismantled by rioters protesting the controversial election of Mwai Kibaki as president.

“They took turns on me as others dragged my husband down the river cutting him up with pangas. Badly hurt, I staggered to his rescue and we took him to Kenyatta hospital. I walked back only to find my house had been brought down. I became an Internally Displaced Person,” she narrates.

She struggles to hold back her tears as she explains the ordeal that turned her life upside down: “I was smelly and felt unworthy of living after all that happened that day. To add salt to the injury, I found out that I had been infected with HIV and there the agony began.”

Her quest for justice ever since has been a torturous one and has not borne fruit. Her violators still taunt her, her life took a turn and she has never been compensated for the loss of her dignity. Particularly striking to her is that no judicial mechanism has nailed her violators.

“I see them every other day. They are still my neighbours. They taunt me that nothing will ever happen to them. I am very bitter with everything,” she exclaims as she rubs her hands together as though submitting to her sorry fate.

And now adding to her bitterness is the current talk of disbanding the Truth, Justice and Reconciliation Commission, the only national mechanism that has been set to deal with all human rights violations that occurred in the country from 1963 to February 2008.

Attempts to set up a local special tribunal have thrice failed. The International Criminal Court has been slow in coming and the local courts have not helped the situation either.

They want to throw it away because they did not suffer a thing, she says. “They want us to forget everything and move forward. But how will I do that when I do not have an opportunity to say what happened to me and when I see my aggressors, the people who raped me every day?” she poses.

Wanjiru’s case is no different from Wafula Buke’s, a former student leader at the university of Nairobi in 1980’s and who was arrested, tortured and imprisoned for five years for allegedly spying on the former President Daniel arap Moi’s government.

We caught with Wafula in town while he was running some errand with her 12 years daughter. Like Wanjiru, Wafula has no love lost with those seeking to disband the barely a year old commission because of a credibility crisis occasioned by the chair Bethuel Kiplagat’s adamant refusal to quit.

Kiplagat’s credibility questions have sucked in the entire commission and elicited one resignation of a commissioner. In addition to leadership crisis, the commission has lean funding, no staff and lacks the critical support of civil society and donor community.

“The chair is holding the commission at ransom and creating the circumstance for its disbandment. No one in the coalition government top hierarchy has told him to resign. Instead, they are loud on disbandment, why?” Buke says.

Instead of giving up on the commission because of its problems, Wafula says people should try to get the best they can out of the commission as is.

Kenyans had better be “pragmatic enough” to seize the opportunity as is and get the best out of this situation: “We used Kibaki in 2002 to dismantle the Kanu apparatus despite his known weakness as a conservative. We can do the same with Kiplagat and get what we can for now instead of losing it all.”

But Justice and Constitutional Affairs minister Mutula Kilonzo is very resolute that the commission is irredeemable and must necessarily be disbanded. Such disbandment will work in the interest of Kenyans, the minister claimed.

‘The government cannot interfere with the truth commission but will be pushing for the disbanding of the commission through parliament as the organ recognized by law,” Mutula said.

The minister however concedes that allegations levelled against the chair of the commission Bethuel Kiplagat on involvement in past human rights violations are indeed worrying but he says he’s washed his hands off the matter.

But if the minister is only daring, one MP has already done it. Ababu Namwamba, a member of the parliamentary committee on administration of justice and legal affairs has pulled a fast one on the commission:

“Unknown to the country, on 3rd March, 2010, I filed notice of a motion seeking the disbandment and reconstitution of the TJRC through amendment of the Truth, Justice and Reconciliation Act, 2008.”

Ababu’s has been lying before the House Business Committee for two months now due, partly to the heavy legislative agenda in the last session which included conclusion of the constitution review process, and partly due to what he calls “sharp divisions and uncertainty within corridors of power on how to handle the TJRC fiasco.”

He explains that his motion is premised on one central factor: that the very character of the TJRC as an institution has been so badly damaged that even the mere removal of the chairman alone will not cure the damage nor revive public confidence in the commission.

“To execute its mandate effectively and achieve its noble goal of leading this nation towards truth, justice and reconciliation, the TJRC, like Ceasar's wife of Imperial Rome, must not only be blemish less, but must indeed exist beyond reproach,” he says.

According to the youthful MP, such disbandment will be in national interest and that is why he cannot wait for parliament to reconvene in June to pursue that root.

For Davider Lamba, a member of the 2003 taskforce on truth commission chaired by Prof. Makau Mutua, a disbandment of the commission it’s reconstitution notwithstanding would create a gap by abolishing an avenue to deal with the country’s “murky” past.

Despite its ills of lean resources, time, leadership crisis and all against the background of a broad mandate and huge expectations, the commission must stay on, Lamba says while drawing experience from the 2003-2007 failure by President Kibaki’s first regime to set up the commission.

“We cannot rely on politician’s words from the 2003 experience. The current commission is a creature of the National Accord and cannot be disbanded at whim, it must stay on!”Lamba said.

According to the commission’s CEO Patricia Nyaundi, the situation facing the commission is like the one that faces a father who buys a table and painstakingly transports it to his rural home only to realise one of its legs is shorter.

“The question here is do you transport it back all the way to the city to fix it or do you find a local solution. A wise father would find something to leverage it and the table would still serve its purpose,” Nyaundi says.

The commission has leadership and other institutional problems which should not be the basis for its disbandment; Nyaundi says and adds that Kenyans must pull all the stops to get the best out of the current arrangement.

She says disbandment would not only be expensive in terms of termination of contracts but will also drag the transitional justice agenda and spill it over into the “usually vicious campaigns” associated with our electoral cycles.

“Assuming the government is rich enough to pay us all, when is the earliest that a disbandment can occur? Parliament will be back in June and will busy itself with budget up until September.

There will be a referendum and so issues to do with us may not be a priority,” she argues.
But the minister insists that a new TJRC which has confident of all would not be affected by the campaigns:

“There should be no worries of the coming referendum and 2012 election campaigns; they will not interfere with the commission at all”

The way forward for Nyaundi is that the civil society ought to close ranks with the commission to advance the transitional justice agenda and the Chief Justice expediting the process of appointing a tribunal to investigate the allegations against the chair.

The dilemma facing the country is captured by the ambivalent stand taken by the Kenya Human Rights Commission, the country’s premier human rights body and which single-handedly led the quest for a TJRC.

“We are still deliberating on the way forward but as for now, our approach is that of non cooperation with the commission. We are however working with the victims on documentation of their accounts,” acting deputy executive director of Kenya Human Rights Commission Tom Kagwe said.

Kagwe’s personal opinion however is that a disbandment might sound a sure death knell to the commission which his organization has pressed for many years and whose chair (Mutua) chaired the task force of 2003.

He does not even like the media harping on disbandment option because it gives the impression that it’s doable.

“We should be talking about salvaging the commission because disbandment might play into the hands of some people who do not wish to have a truth commission. The fact that Kiplagat has refused to listen to everyone including Desmond Tutu should make you suspicious,” Kagwe says.

According to him, a way should be found to resolve the leadership issue probably through replacing all commissioners but retaining the secretariat and taking advantage of the possible momentum if new constitution passes through to jolt the process forward.

The truth commission was agreed on during the Serena hotel national dialogue and reconciliation talks of 2008 which gave birth to the National Accord. It took a year or so to develop the TJRC Act and half a year to recruit and appoint the commissioners.

Its mandate includes probing human rights violations in the form of massacres, sexual violations, murder and extrajudicial killings, grand corruption, irregular acquisition of public land, causes of ethnic tensions and state repression including torture and cruelty.

The violation cases themselves run into thousands and thousands of cases but the commission has indicated it will work on a framework of establishing broad patterns of the violations without necessarily handling all cases.

For now however, the commission is in a limbo and suspicion abounds between the two sides as the nation awaits the verdict of CJ Evans Gicheru on truth commissioner’s application for a tribunal to be formed.

The trouble with the tribunal however is that Section 17 of the Truth, Justice and Reconciliation Act of 2008 does not give a timeline on how such an inquiry might last. A similar tribunal set up in 2004 to investigate judges accused of corruption has just cleared its work.

According to a 2006 United Nations High Commissioner for Human Rights publications, “Rule of law tools for post-conflict states: Truth commissions, successful truth commissions must have the three critical elements of political will, support of victims and cessation of conflict.

It must have operational independence, enjoy legitimacy and people’s confidence as well as receive considerable international support in terms of funding.

Majority of these are lacking in the Kenyan case begging the question: Is it by design or by chance that the truth commission is failing before its task begins?

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