UNCLAS SECTION 01 OF 02 NAIROBI 002768

SIPDIS

LONDON, PARIS FOR AFRICA WATCHERS

E.O. 12958: N/A
TAGS: PGOV PHUM KDEM KCRM KE
SUBJECT: PRESIDENT SIGNS TRUTH, JUSTICE, AND RECONCILIATION
LAW

REF: NAIROBI 1170

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SUMMARY
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1. On November 28, President Mwai Kibaki signed into law the
Truth, Justice, and Reconciliation Act (the Act). The Act
creates a Truth, Justice and Reconciliation Commission (TJRC)
to establish a complete record of violation of human and
economic rights from the time of Kenya's independence in
December 1963 until February 28, 2008, the date of the
signing of the power-sharing agreement that ended Kenya's
post-election crisis. The TJRC is empowered to grant amnesty
to individuals who make a complete, truthful admission of
wrongdoing, and to recommend prosecution where evidence
warrants. It has the power to order reparations and the Act
creates a reparation fund. The TJRC will operate for two
years, with a possible six-month extension. The TJRC's broad
mandate and the short time to complete its work is
problematic, and the track record for similar commissions is
mixed. The inclusion of a reparations mechanism within the
TJRC threatens to overwhelm the body. We are concerned about
aspects of the Act that may permit undue government influence
of the TJRC. Also, the Act's amnesty provisions do not
preclude amnesty in cases of crimes against humanity,
providing a potential escape route for high-level organizers
and financiers of the 2007 post-election violence who will be
tried in a special tribunal, which Parliament is expected to
establish imminently (Septel). End Summary.

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THE TRUTH, JUSTICE, AND RECONCILIATION ACT
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2. The Truth, Justice, and Reconciliation Act (the Act) is a
product of the Kofi Annan-led mediation process which
resolved Kenya's post-election crisis. The Orange Democratic
Movement and the Party of National Unity both recognized that
unresolved historical grievances contributed greatly to the
severity of the post-election violence. The stated goal of
the Truth, Justice, Reconciliation Commission (TJRC) is to
foster national unity by providing Kenyans a forum in which
to air their grievances and be compensated for injustices
suffered.


3. The Act was passed by parliament in early November and

signed into law by President Mwai Kibaki on November 28. The
Act does not vary significantly from the bill submitted to
Parliament in May. There will be nine commissioners. The
six Kenyan Commissioners will be selected through a public
application process. The Act establishes a selection panel
comprised of representatives of religious groups, trade
unions, the Law Society of Kenya and other groups, which will
rank applicants and provides its rankings to Parliament.
Parliament will nominate the six Kenyans to be Commissioners.
The three international Commissioners will be nominated by
the African Union Panel of Eminent Personalities. All
commissioners will be appointed by President Mwai Kibaki.
The TJRC will have a two year mandate in which to examine
violations of human and economic rights dating from Kenya's
independence in December 1963 until February 28, 2008.

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AN AMNESTY MILL?
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4. The TJRC is entitled to recommend that the President of
Kenya grant amnesty in exchange for complete, honest
admissions of human rights violations and economic crimes.
It may also recommend prosecutions where evidence warrants.
The TJRC may recommend amnesty only after the victim(s) of
the crime(s) have been heard. Additionally, the TJRC may
only recommend grants of amnesty for economic crimes if
restitution is made. The TJRC may not recommend grants of
amnesty for gross violations of human rights, defined as
violation of fundamental rights, such as torture, killing,
abduction, rape and other forms of gender-based violence, and
other crimes. Controversially, the Act as written does not
preclude amnesty for crimes against humanity and genocide, in
violation of Kenya's obligation under international law.
Upon receipt of an application for amnesty, TJRC may request
that pending criminal proceedings arising from the acts in
the amnesty application be suspended until the application is

NAIROBI 00002768 002 OF 002


considered. This opens a potential conflict between the TJRC
and the Special Tribunal that Parliament is expected to
establish to try high-level organizers of post-election
violence (Ref a and Septel). Because the TJRC's mandate
includes the period of post-election violence also covered by
the Waki Commission report, a defendant at the Special
Tribunal not charged with gross violations of human rights
may apply to the TJRC for amnesty, which, if granted, could
allow suspects to be pardoned by President Kibaki.

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REPARATIONS AVAILABLE
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5. The Act establishes a reparations process allowing anyone
who has suffered from a gross violation of human rights to
apply to the TJRC for reparations. Reparations are to be
made from a reparations fund, which is also created by the
Act and which will be financed through the budget. Victims
of economic crimes are not eligible to apply to the
reparations fund. The Act requires perpetrators of economic
crimes to pay restitution as a condition of receiving
amnesty. However, the Act does not clarify to whom
restitution should be made nor does it create a process for
persons whose economic rights have been violated to be
compensated.

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CIVIL SOCIETY FAULTS LAW
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6. Civil society groups have criticized the Act. Their
basic concern is that the Act emphasizes amnesty to the
detriment of justice. One civil society leader termed the
TJRC an "amnesty commission." Some civil society leaders
have also observed that the TJRC will rely on police
assistance to investigate acts coming under its mandate.
They fear that the police will be unwilling to undertake
transparent investigations where powerful persons or police
personnel are involved. Civil society leaders also fear that
the Act allows room for political interference. They point
to a clause that allows the President to appoint the
Chairperson of the TJRC. International best practice, they
argue, is to allow commissioners to elect a Chairperson from
amongst themselves. They also fear that the role of the
Minister of Justice, National Reconciliation, and
Constitutional Affairs in setting TJRC salaries and approving
the annual operating budget might allow for political
interference in the work of the TJRC.

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COMMENT
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7. As is often the case with commissions in Kenya, the
success of the TJRC will depend on the quality of the
commissioners selected. The transparent selection process
for commissioners is commendable. However, the TJRC has been
given an over-broad mandate and a short time in which to do
its work. Inclusion of a reparations process within the TJRC
will tax the resources of the TJRC, allowing less time for it
to focus on its truth-finding and restorative justice goals.
The government previously stated that the TJRC will be funded
without donor support and the Act states that the TJRC will
be funded through the consolidated fund of the budget.
However, the government has not provided any cost estimates
for the TJRC and the reparations fund. The Act includes a
provision allowing donations to be made toward the operation
of the TJRC and the reparations fund, an acknowledgment that
the government may be unable to finance the TJRC fully. We
will continue to follow closely developments related to the
TJRC. End Comment.
RANNEBERGER