I have been following the enormous media interest in the Final Report of the TJRC with great interest. Part of the purpose of truth commissions is to foster a national dialogue about historical injustices.
While we had some success during our operational period in creating space for such a dialogue, the many challenges we faced, as well as other events that occurred during that period that garnered more media attention, meant that we did not succeed in fostering such a dialogue as much as we would like.
I thus welcome all of the attention that is being paid to the Final Report. It is my hope that the Report will provide material for multiple conversations over an extended period of time.
The Report is not meant to be the final word on its contents. Rather, its primary purpose is to encourage, and contribute to, a national conversation on the past with the ultimate goal of understanding that past better so that a more solid, just, and brighter future may be developed for all Kenyans.
There is, however, an aspect of the current media attention that I find quite curious, even ironic. A good deal of attention is being paid to those individuals who we have named in the Report, and particularly those for whom we have recommended further investigations and, if the evidence then warrants, prosecutions.
In and of itself such attention is not a problem. This attention on those accused, however, appears to be at the expense of the voices of the thousands of victims who courageously shared their stories with the Commission, and whose voices are found throughout the Report.
Given the history of impunity in Kenya, it is perhaps understandable that a good deal of attention would be paid to those we have identified as being candidates for further investigation.
Any number of these individuals have – at least as reported in the press – stated that they are outraged that they have been named in the report; that they are innocent; and that they will go to court to clear their names.
As a human rights lawyer, I would be the first person to defend the rights of these individuals to have their names cleared. Nothing that the Commission has done, including its Final Report, precludes the exercise of such rights.
What I find ironic, even disturbing, is the loud cry of injustice that many of these individuals claim for having their name in the Report. Our findings – which are the statements of fact that we as a Commission stand behind as true based upon the balance of probabilities standard of proof – name very few individuals.
Even those individuals who are named may not in fact be found culpable under the criminal standard of beyond a reasonable doubt.
But we do find that on a balance of the probabilities standard that there is enough evidence to state their responsibility for injustices committed during our mandate period. Very few individuals are named in those findings.
Most of the individuals named have been identified as candidates for further investigation. This is because the Commission did not have sufficient evidence to conclude one way or the other the culpability or innocence of such individuals.
Yet many of these individuals are crying foul, and loudly proclaiming the injustice of us mentioning them in our Report. They are claiming to be victims. Yet the thousands of victims whose stories are included in the Report do not seem to be of concern to such individuals.
The voices of thousands of wananchi, which we so deliberately included in our Report, are in danger of being silenced yet again. While being wrongly accused of a crime is of course an injustice, it pales in comparison to the injustices suffered by the thousands of women who were raped, often repeatedly, during our mandate period.
It pales in comparison to the tens of thousands of innocent civilians killed in the northern region either by government forces or bandits. It pales in comparison to those who have been terrorized by militia groups, whether they be Mungiki or SLDF.
It pales in comparison to the hundreds of people deliberately tortured in, among other places, the Nyayo torture chambers.
Yes, being wrongly accused is an injustice. But it is an injustice that has an easy remedy. We recommend that those individuals we have identified as potentially responsible be investigated by the DPP, and that the DPP then make public its own decision, based upon its own investigation, of whether to prosecute or not.
In other words, we have put into place a mechanism by which such individuals will be either vindicated or prosecuted. And of course those prosecuted should not be considered guilty merely because there is enough evidence to prosecute them.
Thus I hope that those individuals who are loudly proclaiming their innocence will loudly encourage the DPP to follow our recommendations and undertake an investigation into the matter and then make the results of that investigation public. This is one easy way for them to have their claimed innocence established.
Meanwhile, let us not let the voices of those in power – whether innocent or guilty – drown out the voices of those for whom there is no doubt an injustice has been suffered.
Let us not ignore the importance of achieving justice for innocent individuals who have been accused by their fellow Kenyans of atrocities.
But let us also not allow the legitimate concern about the rights of those individuals drown out the equally important rights of those for whom there is no doubt justice is required. Those who have been named in our Report have not been found to be guilty.
There is evidence suggesting that they may be. There is a process mandated by the Commission’s Report by which those individuals will either be found innocent or guilty. That is justice.
We should demand no less for those accused of such responsibility. But justice applies to each and every Kenyan. And justice demands reparations and, if the evidence warrants, accountability for those responsible for gross violations of human rights committed against thousands upon thousands of Kenyans whose voices have rarely, if ever, been heard.
As the media and others embark on this national conversation, let us all try extra hard to include their voices in that national conversation. I hope that those who are concerned about the rights of those named in the Report will be equally vocal about demanding that the government follow our recommendations and generously fund individual and communal reparations for those for whom there is no doubt an injustice has been suffered.
Ronald C. Slye is a Commissioner with the TJRC, and a Professor of Law at Seattle University School of Law.