Nairobi, KENYA
The Kenyan National Assembly has blocked justice and reparations for
victims of human rights violations by failing to consider the findings of a
2013 report by the country’s Truth, Justice, and Reconciliation Commission
(TJRC), a coalition of human rights organizations said today.
Residents flee as anti-riot policemen pursue opposition protestors in Mathare, Nairobi, on August 12. 2017
The groups – International Center
for Transitional Justice, Human Rights Watch, Kenya Human Rights Commission,
The National Victims and Survivors Network, Grace Agenda, Center for Memory and
Development, and Wangu Kanja Foundation –said that hundreds of victims are
still waiting for justice, medical and psychological help, compensation, and
other redress from the government.
Kenya’s transitional justice process started
after the contested 2007 presidential elections sparked mass violence,
resulting in the deaths of at least 1,133 people, destruction of homes and
properties, sexual and gender-based crimes, and forcible displacement of
thousands of people.
Two transitional justice mechanisms were created: a
truth, justice, and reconciliation process, which led to the creation of the
commission, and ultimately, proceedings before the International Criminal Court
(ICC). Both processes have failed to
ensure justice and redress for victims of serious crimes, and
impunity and suffering prevail.
“We cannot talk of justice and healing when some
Kenyans continue to languish in the pain of past injustices,” said Agatha
Ndonga, head of the International Center for Transitional Justice in Kenya.
“The Kenyan state has a duty to ensure that all
Kenyans who have suffered harm, as laid out in the TJRC report, are duly
compensated to restore their dignity.”
The TJRC’s mandate was to examine a wide range of abuses
and injustices since independence up to the 2007-2008 political violence
period. It made a wide range of recommendations aimed at accountability and
reconciliation to heal historical injustices in Kenya.
It proposed various forms of reparations for victims and a
reparations policy framework, and recommended that the National Assembly
develop guidelines to carry them out.
The commission presented its final report to President Uhuru Kenyatta on May 21, 2013.
Under Kenya's 2008 Truth, Justice, and Reconciliation Act (TJR Act),
implementation of the recommendations was to begin immediately after the
National Assembly considered the report.
However, the National Assembly has, for more than
six years now, failed to adopt the TJRC Report and put in place a mechanism to
undertake implementation of its recommendations, said the seven organizations.
Kenya’s National Assembly has also made legislative
changes that undermine the effectiveness of the transitional justice process.
In December 2013, in a move widely criticized by
Kenyans as an attempt to undermine truth telling, justice, and reparations for
victims, the National Assembly amended the 2008 TJR Act, giving themselves
the authority to determine if, when, and how the recommendations would be
carried out.
The amendment also removed timelines for carrying
out the recommendations. Since then, the National Assembly has effectively
stalled adoption of the report, the organizations said.
Kenyan authorities have taken some positive steps
to address the needs of some victims of past atrocities. However, some of these
initiatives have failed because they are haphazard, failed to consult and verify victims claims of abuses,
were limited in scope, excluded
certain victims, or are undermined by allegations of corruption.
For example, although the Kenyan government
provided monetary compensation, housing, and land to some people who were
displaced or lost property during the 2007-2008 political violence, survivors of
rape and other sexual violence have largely been excluded and
very little has been done to address their specific medical or other needs.
“Political wars were played out on our bodies, but
we have been completely forgotten by the government,” said Jaqueline Mutere, a sexual violence survivor from the 2007
elections violence and member of the National Victims and Survivors Network.
“We demand justice and Compensation, including for
our children, who were born from the rapes.”
While Kenyan courts have issued judgments in favor
of the victims in the Nyayo House torture cases and awarded damages to victims,
the government has failed to honor a large number of the payments ordered by the
courts, and there are no effective mechanisms to compel the state to pay.
Even when damages are paid, there are concerns that
the amounts awarded are insufficient compared to the harm
suffered by victims. As a result, victims remain at the mercy of the good will
of the government to receive what is their right under Kenyan and international
law, the groups said.
Kenyan courts have also been slow in addressing
harm suffered by victims. At least three constitutional petitions seeking state
recognition and reparation for victims of the 2007-2008 elections violence have
been pending in court since 2011.
These include cases filed by victims of elections-related sexual violence, displacement, and police
shootings/extra-judicial killings. Victims in these cases have
experienced excessive delays in the justice process due to factors including
huge backlogs of cases and frequent transfer of judges.
“For a long time, Kenyan authorities have been
speaking from both sides of the mouth; they say they want to address past
injustices, but refuse to pay victims their court-awarded damages or courts do
not finalize cases,” said Wachira
Waheire, a Nyayo House torture survivor and member of the National
Victims and Survivors Network. “This has caused great frustration for victims.”
In March 2015, President Kenyatta acknowledged the human rights violations documented by the TJRC,
offered an official apology to all victims of past injustices in Kenya, and
established a Restorative Justice Fund to offer reparations to victims, as
recommended by the commission.
Although the move was criticized as disingenuous and as an attempt to cover up years of ineffective
investigations and to prevent prosecutions of senior
politicians named in the TJRC report, it raised the hopes of victims that
reparations would be forthcoming.
But in another blow to victims, the money has not
been paid because a draft reparation policy and draft regulations prepared by the
Attorney General’s office in 2017 have not yet been adopted.
Two current initiatives expand opportunities for
Kenyan authorities to provide redress and right past wrongs against victims. A
private member’s bill, Kenya Reparations Bill 2017, was introduced in parliament by
Gladys Shollei to provide for recognition and reparations for victims of human
rights violations in Kenya, including victims of the 2007-2008 election
violence.
The bill specifically mentions the need to include
survivors of sexual violence. Parliament should adopt this bill, and the
government should immediately carry out its provisions.
Another process, the Building
Bridges Initiative (BBI), meant to address persistent causes of
disunity in Kenya, can open discussions about implementing many of the TJRC’s
recommendations. However, ultimately, the BBI cannot be a substitute for the
broader process and a more victim-centered outcome of the TJRC.
“Victims of historical injustices have waited for
years for Kenyan authorities to do what is right, and it is imperative for
Kenyan authorities to carefully plan and deliver reparations for victims to
alleviate their suffering,” said Agnes Odhiambo, senior
Africa women’s rights researcher at Human Rights Watch. “As government
authorities continue to develop other initiatives to reconcile Kenyans and
build a shared prosperity, they should prioritize adoption and implementation
of the TJRC report.” - Africa
