Kenya's draft bill to establish a Truth, Justice and Reconciliation Commission is flawed and should be amended, Human Rights Watch said today. Human Rights Watch urged parliament to revise the bill before it becomes law.

"The national dialogue and reconciliation process was supposed to create institutions that can address Kenya's historical injustices and bring criminals to book for their crimes," said Georgette Gagnon, Africa director at Human Rights Watch. "But as currently drafted, the commission has serious flaws that must be urgently addressed by parliament, especially its amnesty provisions."

If the contradictions in the draft bill are not resolved, the Truth, Justice and Reconciliation Commission (TJRC) could fail to contribute to or even undermine the justice which Kenya so badly needs. The Kenyan parliament should take time to reflect on the bill and amend it to rectify the flaws rather than passing it into law with undue haste.

The serious questions that parliament must address in the committee stages of revising the bill are:

The amnesty provisions as proposed are inconsistent with Kenya's obligations under international law, which rejects impunity for serious crimes, such as genocide, war crimes, crimes against humanity, and torture. International treaties, including the UN Convention against Torture, the Geneva Conventions, and the Rome Statute of the International Criminal Court, require parties to ensure alleged perpetrators of serious crimes are prosecuted. Kenya has ratified each of these in addition to numerous other human rights treaties.

Although the draft law states that the TJRC will not grant amnesty for "crimes against humanity or genocide within the meaning of international human rights law," it does not mention war crimes or acts of torture not amounting to crimes against humanity. The bill should provide that the TJRC will comply with established international human rights law and should clearly exclude amnesty for genocide, crimes against humanity, war crimes, and torture. The bill should also make perpetrators of crimes of sexual violence ineligible for amnesty.

The independence of the commission is severely compromised in the current draft because Article 40 gives the Minister of Justice and Constitutional Affairs the power to scrutinize and approve the commission's expenses, allowances, and budget. This provision effectively gives the government control over the activities of the commission.

Article 23 of the draft bill gives witnesses immunity, but Article 3 says the commission is a legal body that can sue and be sued. The commission should be given immunity from being sued for its actions as a court to prevent it being obstructed by spurious lawsuits.

Kenya has had numerous previous bodies that have documented many of the crimes under scrutiny by the TJRC. The TJRC thus risks re-inventing the wheel. Where comprehensive and clear recommendations have been made before (such as those of the Ndung'u Commission, the Akiwumi report, and the Kiliku report), the TJRC could simply require their implementation.

The draft appears to limit its work on land issues to the "irregular and illegal acquisition of public land." All illegal land deals should be the subject of investigation.

Nowhere in the draft does it clearly state that the work of the commission will not replace conventional police investigations and prosecutions, nor should the existence of the commission be an excuse for such investigations to cease. It should be stated that the police response to recent and previous crimes is of vital importance and should continue in the normal way.

The draft bill gives the commission only two years to address all forms of historical injustices, including corruption, land issues, and reparations for victims. This array of injustices is very wide. It would be better if the commission was given a much longer life, or perhaps the scope of its investigations was reduced, for example with land and compensation issues being dealt with separately.

"If the proposed Truth, Justice and Reconciliation Commission is to achieve its ambitious goals and not simply become another whitewash, the loopholes in its mandate must be closed by parliament," said Gagnon.

Background

The need for a TJRC to inquire into historical injustices, systemic human rights violations, economic crimes, and the illegal or irregular acquisition of land by previous governments was first acknowledged by the incoming National Rainbow Coalition government in 2003. That government appointed a Task Force on the Establishment of a TJRC, chaired by Professor Makau Mutua. The task force recommended the creation of a TJRC before June 2004, with a specific mandate, powers, and functions. However, its recommendations were ignored by the government.

Following the violence triggered by the controversial 2007 presidential elections, the Kenya National Dialogue and Reconciliation Committee, led by former United Nations Secretary-General Kofi Annan, agreed to set up a Committee to Investigate the Post-Election Violence and a TJRC to examine historical injustices up to the end of 2007. The government drafted the law that is currently before parliament with input from some civil society organizations.