Kenya

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Background

The intense violence and political unrest that threatened to destabilize Kenya following its contested presidential elections in late December 2007 led to a round of negotiations beginning in late January 2008, known as the Kenya National Dialogue and Reconciliation. Brokered by the African Union's Panel of Eminent African Personalities, which is chaired by former UN Secretary-General Kofi Annan, the negotiations produced terms for a Grand Coalition government including Mwai Kibaki's Party of National Unity (PNU) and Raila Odinga's Orange Democratic Movement. The accord led to the cessation of most violence and called for the establishment of several bodies of inquiry. These included a Commission of Inquiry on Post-election Violence (CIPEV), a Truth, Justice, and Reconciliation Commission (TJRC), and an Independent Review Committee (IREC) to investigate all aspects of the 2007 elections. The Commission of Inquiry and Independent Review Committee completed their work in September and October, and the TJRC is set to begin work in the next few months.

ICTJ Activity

ICTJ's involvement has centered around collaboration with Kenya's vibrant civil society, providing technical assistance and supporting advocacy on truth-seeking, prosecutions, and institutional reform. Partners include the Kenya National Commission for Human Rights (KNCHR), the International Center for Policy and Conflict and the Center for Multiparty Democracy.

Truth-Seeking

ICTJ undertook several assessment missions to Kenya in 2008, identifying opportunities for truth-seeking and assisting Kenyan civil society as it lobbied for revisions to the bills establishing a Truth, Justice and Reconciliation Commission (TJRC). Kenyan civil society, with the support of ICTJ, won a significant tactical victory in August 2008 when it successfully urged the coalition government to withdraw the draft TJRC and Constitutional Reform bills from Parliament. In the time gained, ICTJ helped its local partners revise the draft of the TJRC bill, particularly its flawed amnesty provisions. A final bill was passed on October 23, 2008 and a six-member selection panel is expected to submit names of possible commissioners to Parliament in April. Although the final bill failed to incorporate many of the revisions, ICTJ's efforts helped ensure that the final bill prevents amnesty for gross violations of human rights.
ICTJ will monitor the TJRC's work, supporting local partners as they urge the Commission to include the voices of victims and not to grant amnesty for corruption related crimes. This will involve close coordination with local partners. These efforts have several concrete objectives:

To enhance civil society and public knowledge on transitional justice.
To ensure the appointment of competent, politically independent Commissioners.
To limit grants of amnesty for apolitical crimes. While Kenya's TJRC bill prohibits amnesty for gross violations of human rights, it allows amnesty for crimes committed for personal gain. ICTJ will support civil society monitoring of the Commission and engage the Commissioners to limit the number of amnesty grants for corruption and other non-political crimes.
To assist Commissioners and staff with statement-taking, investigation, due process, the sensitive treatment of victims, and attention to gender-based violations.
To place pressure on the Attorney General to implement the amnesty and prosecution recommendations of the TJRC.

Prosecutions

The report of the Commission of Inquiry into Post-Election Violence ("the Waki Report"), released on October 15, 2008, included strong recommendations on prosecutions and police reform. The report recommended against amnesty for all but "minor offenders" and calls for the establishment of a Special Tribunal to try "those bearing the greatest responsibility," particularly for crimes against humanity. After releasing the report, the Commission delivered a secret list of perpetrators to Kofi Annan, and stipulated that if the agreement establishing a Special Tribunal was not signed within 60 days, the list would be forwarded to the International Criminal Court (ICC). The list is said to include names of high officials in government.
The threat of ICC prosecution appeared to motivate Kenyan lawmakers to draft a bill before the deadline set by the Waki Commission: President Kibaki and Prime Minister Odinga signed an agreement on December 17 to establish a Special Tribunal to try perpetrators of the post-election violence. The President and Prime Minister were not able, however, to convert their agreement into a legislative victory. After two weeks of intense and public political controversy in early February 2009, the Constitutional Amendment Bill that would have allowed the establishment of a Special Tribunal in Kenya was defeated.

Upon the defeat of the bill, the ICTJ Cape Town office released a press statement regretting the defeat and urging the Ministry of Justice, the Annan Mediation Team, Parliament and Cabinet to work together to improve the bill in a consultative process. Kofi Annan has since extended the deadline for the passage of bills establishing a tribunal, and ICTJ is continuing to support local partners as they attempt to secure the passage of an amended bill that would lead to a truly independent Special Tribunal.

Institutional Reform

The Waki report proposed extensive reform of the Kenyan police force, recommending that Kenya's two police forces-the Administration Police and the Kenya Police Service-be merged into one. The Commission also suggested that a temporary Police Reform Group be created to guide the reform process and oversee the creation of an independent police complaints authority and a police service commission to which the police would be politically accountable. ICTJ is monitoring the implementation of these recommendations and supporting local organizations' advocacy efforts on police reform. Future support for institutional reform may extend to land reform initiatives and to the constitutional reform process now underway.

ICTJ Presence

In 2009, ICTJ will open an office in Nairobi to engage with Kenya's transitional justice process directly. A search is currently under way for a Kenyan National to head the office.

(Updated April 2009)

Kenya Resources