Kenya must never forget the 28th of February, 2008. This day marked the signing of the National Peace Accord to end the 2007/2008 post -election violence. It was noted that this was a new chapter for the country, to begin the peace process. The establishment of the Truth, Justice and Reconciliation Commission was part of this package deal.
The Truth Justice and Reconciliation Act of 2008 (TJR Act) was enacted by parliament following the post -election violence and was aimed at addressing the gross human rights violations that had occurred from independence to the 2007/2008 electoral violence. It was envisaged that in addressing these violations, Kenya would promote peace, justice, national unity, healing and reconciliation.
It must not be forgotten that it took tremendous courage for victims to testify and give their narratives for the first time, to a truth commission. Given the amount of time, tax-payer’s money and personal investment dedicated to this process, the TJRC report must be upheld and protected; implementation of the Commission’s recommendations should commence without further delay.
The Truth, Justice and Reconciliation Amendment Act of 2013 (TJR Amendment Act) seeks to undermine the work of the TJRC. We call upon Kenyans to take note that The TJR Amendment Act gives power to parliament to alter the recommendations of the TJRC report.
Prior to the amendment, it was envisaged that the implementation process of the TJRC report would be done in accordance with the recommendations of the Commission. In the TJR Amendment Act, the implementation of the TJRC report will be done in accordance with recommendation of the National Assembly, upon ‘consideration’ of the report by the National Assembly. The TJR Amendment Act affects the very provisions on the implementation of the recommendations. In consequence, the TJR-Amendment Act amounts to an amendment of the report itself.
That the National Assembly will alter the TJRC report under its consideration seems very likely. The MPs’ ignored the provision by the Justice and Legal Affairs Committee prohibiting any amendments to the TJRC report. It goes without saying that the country will witness the expunging of names recommended for prosecution to protect those in power or allies of those in power, the editing of certain sections to suit the interests of those incriminated, a distortion of the narratives of victims and finally a watered down, politically correct document. This will be a blatant and outright violation of the right to truth.
Article 35 of the constitution provides for the right to information. All citizens are endowed with this right. In the wordings of Article 35 (1) (a), (b) and (3), the state and any person holding information has an obligation to publish and publicise it. Whether for the exercise or protection of a right or fundamental freedom, or by fact that such information affects the nation.
Article 19 of the constitution provides that rights, including the right to information and inferred from that, the right to truth, belong to each individual. Thus these rights are not granted by the State, but rather accrue to all human beings.
Further, Article 19 (3) (b) provides that the rights and fundamental freedoms do not exclude other rights. And if there are such rights recognized or conferred by law, their applicability is welcome. The right to truth recognized internationally and applicable in Kenya vide Article 2 (5) of the Constitution – which shall be detailed herein below- is such a right.
National values and principles of governance as enshrined in Article 10 bind all State Officers, organs, public officers and all persons. The National Assembly is one such organ and/or person(s) bound by these values and principles whenever it – Article 10 (1) (b) – ‘enacts, applies or interprets any law.’ The values and principles include but not limited to, (2); the rule of law, democracy, human rights, transparency, and good governance.
The National Assembly is bound to act within the Constitution and other provisions of the law. The findings of the Commission have to be held – by state organs and any persons – within the national values and principles of governance. This is the only way that people can access their right to information. True information.
According the TJR Act, one of the objectives of the Commission is to promote peace, justice, national unity, healing and reconciliation. The Commission must inter alia; establish an accurate, complete and historical record of human rights and economic violations and abuses.
The establishment of truth commissions all over the globe and their objective and mandates to enhance democratic developments with regard to reconciliation and the rule of law in the aftermath of conflict and massive human rights abuses indicate that the right to truth is an internationally accepted principle. The legal acts forming the basis for truth commissions, like the TJR Act, ground themselves on the individual component of victims’ needs and right to know about the context of their suffering and a collective component, recognizing the need of the society as a whole to understand the roots and causes of violence that had taken place in their midst in order to facilitate the reconciliation process, to contribute to the fight against impunity and to reinstall and strengthen democracy and the rule of law. The same applies to the TJR Act.
According to the constitution, human rights embodied in the Bill of Rights are an integral part of Kenya´s democratic state and the purpose of protecting human rights is to preserve the dignity of individuals as well as communities (Art.19 (1)(2)). Furthermore, according to Art. 48, the state shall ensure access to justice for all persons and Art.10 provides that the rule of law, democracy and participation, human dignity and human rights, transparency and accountability are national values and principles of governance, binding all state organs. The internationally emphasised right to truth is derived from all these principles. In acknowledging the foregoing principles and rights in its constitution and in its TJR-Act, Kenyan state organs are bound by the right to truth.
In conclusion, the spirit of the TJR Act and the Constitution embrace the right to truth for victims of human rights violations in Kenya and thus it indicates that Kenya adheres to an internationally accepted right to truth in the context of transitional justice mechanisms – especially truth commission.
An argument alleged by members of the National Assembly was that persons implicated in the TJRC report were not appropriately heard before the commission. According to the TJRC report, all individuals who had been found responsible, were given an adequate opportunity to respond. The findings against individuals and groups were made on the basis of the balance of probabilities standard of proof. Given that the implication of a potential perpetrator does not equal a verdict of guilt, delivered by a criminal court, the standard of proof might be lower with regard to truth commission reports which follow a different purpose concerning the truth. The rights of the implicated persons were therefore not violated since they had the opportunity to be heard before the commission and/or to submit documents. Consequently, this argument does not justify an amendment of the TJRC report.
In conclusion the TJR Amendment Act violates the right to truth under the Kenyan Constitution and international law.