Today, state agencies, victims and survivors of varied historical injustices, civil society organizations, development partners and community leaders, have joined hands to specially observe the International Day for the Right to the Truth about Gross Human Rights Violations and for the Dignity of Victims.
The most significant inquiry into the truth concerning gross human rights violations committed in Kenya was carried out by the Truth Justice and Reconciliation Commission (TJRC) between August 2008 and May 2013. The TJRC was established with the objective to “promote peace, justice, national unity, healing and reconciliation among the people of Kenya, by establishing an accurate, complete and historical record” of gross human rights violations and abuses inflicted on persons by the State, public institutions and public officers between 12th December, 1963 and 28th February, 2008, including the nature, causes and extent of such violations; and determining ways to redress victims of gross human rights violations and restore their dignity. (TJRC Act, 2008)
Over 40,000 victims from across the country recorded statements with the TJRC on varied forms of gross human rights violations committed from pre and post-independence to 2008, including political assassinations, massacres, enforced disappearances, unlawful detention, torture, sexual violence, economic marginalization, discrimination of minority groups, violations of economic and social rights, economic crimes and grand corruption. The TJRC established that these violations were majorly perpetuated in the context of state security operations, and political, land and resource-related conflicts, mainly involving state and security agencies, and causing ongoing, long-lasting and devastating physical, psychological, political and socio-economic effects on individuals, their families and communities.
The TJRC called on the State to put in place a number of measures aimed at providing redress for victims and to prevent recurrence of gross human rights violations. It called on the President, the Chief Justice and Inspector General of Police to acknowledge and offer apologies for violations committed by state agencies, for the establishment of public memorials in honor of victims and affected communities, for further investigations and prosecution of individuals alleged to have been involved in the perpetuation of human rights abuses, and for provision of reparations to affected individuals and communities including compensation, medical and psychological rehabilitation, land restitution, resettlement of displaced persons, expunging of criminal records of individuals who were wrongfully convicted, and provision of citizenship documents denied as a result of discriminatory policies. (TJRC Final Report)
The TJRC in its concluding recommendations for redress and reparations for victims of gross human rights violations underscored an important fact: that the right to the truth, while inalienable and independent, is not an end in itself. It is a right that is intended to be empowering to victims, their families and communities who seek redress, recognition, acknowledgment and closure to their often silenced, suppressed and contested experiences of gross human rights violations.
The TJRC report was submitted to the President in May 2013 and tabled in the National Assembly in July 2013. The National Assembly subsequently amended Section 48 of the TJRC Act in December 2013, requiring that the TJRC report be tabled in Parliament “for consideration” and that implementation of the report commence immediately after such consideration. However, the National Assembly has, to date, neither considered nor acted on the report of the TJRC, despite calls by President Uhuru Kenyatta in March 2015 and a petition by the National Victims and Survivors Network (NVSN) in November 2015 and in urging the National Assembly to prioritize debate on the TJRC report. In its review before the UN Human Rights Council in 2015, Kenya was recommended and pledged to implement the TJRC report recommendations and provide reparations to victims and survivors.
Thus, as we observe this important Day, the State’s delay to adopt and implement the TJRC’s findings and recommendations remains a cause for anxiety and concern among victims of gross human rights violations, their families, communities and our nation at large. As underscored by the TJRC, the prolonged history of gross human rights violations and the State’s failure to provide redress and reparations for victims has resulted in persisting divisions among Kenyans on ethnic, regional, political and economic lines, and led to a lack of nationhood and public trust in political and governance institutions. The State’s continued delay to implement the TJRC report denies the country the opportunity to understand and address root causes of historical injustices and gross human rights violations, a situation that makes the Kenyan society susceptible to continued cycles of violence and gross human rights violations, as we continue to see in the context of general elections, resource-based conflict and tensions arising from grievances of marginalization and exclusion.
Nonetheless, victims and survivors of gross human rights violations are encouraged by the State’s initiation of a KShs. 10 billion Fund, which was unveiled by President Uhuru Kenyatta during his State of the Nation Address in March 2015, to provide restorative justice to victims of historical injustices. During the same address, President Uhuru Kenyatta apologized to victims of gross violations committed by the past three regimes, including the massacres of the post-poll violence of 2007.
Victims and survivors, civil society and development partners applaud the measures taken so far, specifically the move to put in place reparations Regulations, to make the Fund operational. The Office of the President, Office of the Attorney General, Kenya Law Reform Commission and Kenya National Commission on Human Rights have been working in consultation with the NVSN and Kenya Transitional Justice Network, with support from the Office of the High Commissioner for Human Rights and other development partners, to develop draft Regulations for the Reparations for Historical Injustices Fund. The draft Regulations propose the establishment of a governing structure to provide overall administration of the Fund, including a Board, Secretariat led by an administrator, and advisory reference group with representation from victims’ groups, state offices, independent commissions, civil society and key sectors of society such as women, children, youth, elderly persons, persons with disabilities, religious groups, private sector, and minorities and marginalized groups. The Regulations propose the provision of various reparation measures from the Fund including compensation and health rehabilitation services for victims of gross human rights violations resulting in loss of life and bodily integrity. These Regulations and proposed reparations framework once adopted will provide guidance for fair, transparent and non-discriminatory support to victims of injustices taking into account their vulnerabilities.
Victims and survivors today urge the State to hasten its steps and urgently finalize, gazette and implement the Regulations for operationalization of the Fund, which promises to demonstrate the State’s acknowledgment of the truth regarding gross human rights violations, and to provide victims with a considerable measure of redress, thereby restoring their dignity.
The right to the truth signifies the right of victims of gross human rights violations and their relatives to “know the full and complete truth as to the events that transpired, their specific circumstances, and who participated in them, including knowing the circumstances in which the violations took place, as well as the reasons for them”. The right to the truth is recognized as every victim of gross human rights violations’ undeniable and autonomous right, which must neither be limited nor denied by the State. It is a right that is directly linked to the duty and obligation of the State to protect and guarantee human rights, which consists of the State’s responsibility to conduct effective investigations and provide effective remedy and reparations for human rights violations. (Office of the High Commissioner for Human Rights)
The United Nations (UN) General Assembly proclaimed 24th March as the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims on 21st December, 2010. The day was introduced by the UN General Assembly, to honor the memory of victims of gross and systematic human rights violations and promote the importance of the right to truth and justice. The General Assembly invites Member States, international organizations and civil society to observe the day. The UN’s observance resonates with Kenya’s protection of human rights in its Constitution and long held recognition of the right to the truth concerning human rights violations as primarily demonstrated through numerous Commissions of Inquiry the government has set up to investigate causes, patterns and individuals involved in the commission, of gross human rights violations, and affected individuals and communities.
About KTJN: KTJN was established in 2009 with the mission of collaborating towards the realization of transitional justice programmes (components) in Kenya comprising of: Truth-telling; criminal Justice; constitutional changes; administrative changes; addressing the plunder of public capital and public land; gender justice; and addressing historical injustices which would include support for victims’ coalitions or groups. To ensure its inclusiveness, KTJN is open to membership by both individuals and groups with the criterion for general membership pegged on subscription to the mission and vision of the KTJN.
About NVSN: NVSN was formed following a resolution of the first National Victims Convention in October 2009. Its main objective is to enhance the capacities and facilitate sustained participation of victims and survivors of varied forms of historical injustices and gross human rights violations to effectively engage with truth-seeking, justice and reconciliation processes in Kenya. The Network’s membership consists of individuals and groups of victims and survivors of various historical injustices and gross human rights violations including the National Internally Displaced Persons Network, the Mau Mau War Veterans Association, Truth Be Told Network, Wagalla Resource and Advocacy Centre, victims of sexual and gender-based violence, torture survivors including victims of the Nyayo House torture chambers, February Eighteenth Revolutionary Army (FERA), 1982 Coup attempt and Sabaot Land Defence Force (SLDF) in Mt Elgon, ex- political prisoners and detainees, victims of historical marginalization, minorities groups, relatives and families of victims of unlawful killings and political assassinations, among many others.