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.”
