• Why the Inordinate delays of reports and prosecution of rights abuses? What happened to TJRC, to the Sh10bn Restorative Justice Fund, the full implementation of the Victims of Torture Act ... and many others?
• We demand to know and we know you're afraid if the truth comes out.
We face a national – indeed international – crisis, and, again, it is being brought home to us those who suffer most are those who are already disadvantaged in our society. It may look as though the coronavirus is something that concerns people who can afford to fly around the world. But we are already seeing the precautionary measures are hitting the poorest hardest. If you earn today what you eat tomorrow, how can you survive not working for weeks? And if (when?), despite the government’s best efforts, we really do have a major outbreak, how do you prevent it spreading fastest among the same groups, who, clearly, have the least access to medical care?
International Day for Right to the Truth
In the midst of these concerns, Tuesday this week was the International Day for the Right to the Truth (dating, like our Constitution to 2010). The specific person whose work and death are commemorated is Archbishop Romero of El Salvador, assassinated, exactly 40 years ago, while celebrating mass because of his denunciation of violations of the human rights of the most vulnerable people in the country. The assassination was carried out by a death squad from the national military. Various agencies of the state, including the Supreme Court, cooperated to obstruct investigations of the murder.
But eventually, after a civil conflict and a peace agreement, a Truth Commission was established. That Commission was a model for many other countries, including South Africa and Kenya. Our own Truth, Justice and Reconciliation Commission, blighted as it was by an unwise appointment of the chair, attracted many submissions by Kenyans, and produced a huge report. Yet this has languished unread by most, unimplemented by Parliament despite the law, and feared by the elite.
The Right to Truth Day is about honouring the memory of victims of gross and systematic human rights violations, promoting the right to truth and justice, and paying tribute to people who devote themselves to the struggle for human rights, and may even have died for this cause. It recognises that for individuals, families and countries, the continued doubt about what happened, the refusal of those responsible to acknowledge their fault, and the failure to acknowledge the suffering of victims is often a cancer at their hearts. 'Moving on' is not an option while doubts, denials and impunity remain.
Violations of human rights occur in every country, and every day. Sometimes many people are affected. In Kenya people will easily remember the terrible post-election violence of 2007-08. In earlier days, the abuses under President Moi, including deaths and torture, are still prominent in the memories of those who suffered, and in the minds of families of victims.
So on this Day of Truth, a number of Kenyan organisations (NGOs)-- who form the National Victims and Survivors Network, the Missing Voices Coalition and the Kenya Transitional Justice Network -- got together to urge various bodies to move forward on the issue of Truth and Justice for victims of these human rights disasters. They put special emphasis on one group within the victims, namely those who suffered sexual violence, particularly during election periods.
We know a lot about what happened at that terrible time in 2007-08. The Waki Commission concluded that “the post-election violence was more than a mere juxtaposition of citizens-to-citizens opportunistic assaults. These were systematic attacks on Kenyans based on their ethnicity and their political leanings.” And, it “was dismayed and shocked to hear in graphic detail about the unspeakable horrors of sexual violence visited on the witnesses who spoke to it as well as the many women and girls and the men and boys who did not.”
The Commission also observed, “the sexual violence after the election was just one more unspeakable aspect of the violence that engulfed Kenya following the 2007 election” and it predicted “ [it] could do so again unless checked immediately.”
The NGO groups on the Day of Truth commented that several cases had been filed in court about the post-election violence, but “these cases remain inordinately delayed more than eight years”.
The TJRC report also dealt with sexual violence, from the colonial period onward, yet, the NGO groups comment, “the government gazetted the TJRC report excluding its volumes IIA and IIC on sexual violence and other gross human rights violations.”
The Waki Commission prediction came true in 2017. A Kenya National Commission on Human Rights Report (Silhouettes of Brutality: An Account of Sexual Violence During and After the 2017 General Election) documents what happened, commenting that 71 per cent of the cases involved more than one rapist, and that “the majority of the survivors come from informal settlements.”
So violations continue. Someone instigates this; much of it is not spontaneous. And even those who do not instigate fail to prevent. And, despite some efforts to deal with the issue, police abuses of power remain. The populations especially the young men, and their families, of many communities, especially informal settlements, live in fear of sudden death, or torture, at the hands of those we supposedly pay to protect us.
What were civil society networks demanding?
This section is largely in the words of the statement issued on Tuesday. The groups demand the truth concerning President Uhuru Kenyatta’s directive of March 2015 to the National Treasury for the establishment of the Sh10 billion Restorative Justice Fund for purposes of healing and reconciliation to the victims of historical injustices. They want to know what became of the Draft Policy and Regulations developed with the office of the Attorney General in 2018 to anchoring that Fund in law (namely the Public Finance Management Act).
They demand that the Fund should be used for immediate and comprehensive reparations for all victims and survivors of gross human rights violations including their families.
They want the Victim Protection Act of 2017 to be fully implemented and explanations as to why this had not been done. Similarly, they want to know why the Prevention of Torture Act and the National Coroners Service Act, passed in 2017, have not been fully operationalised.
The first makes it a crime to commit torture. It imposes a stiff maximum sentence (25 years), and provides that there are no excuses including emergencies or instability or “an order from a superior officer or a public authority”. And the second Act is intended to make better arrangements to hold inquests into mysterious deaths. Inquests can be useful ways of getting at the truth. The statement describes these Acts as “useful human rights tool to curb extrajudicial executions and torture by rogue police officers.”
They might have added that the second Act could usefully be amended: at present, it says that any death in police or military custody” must be the subject of an inquest. But why not included any death caused by the police or military?
They also demand the immediate adoption and full implementation of the TJRC report and its recommendations. And they have also presented a formal petition to Parliament to start this process.
They seek also finalisation of the court cases about the post-election violence. The latter is within the scope of the courts and the Attorney General, perhaps.
Then they raise the issue of victims of Nyayo House who have been awarded damages by the courts but have received nothing. A problem about the law is that there is no way of enforcing judgments against the government.
These are all important issues. We could add others, including land grabbing. Various groups have been saying that the BBI should deal with historic injustices. This was supposed to be done under the Constitution, especially by the National Land Commission. This has again been a disappointment.
Finally, the Civil Society networks’ statement reminds the authorities that human rights must be respected in the time of coronavirus, as always, regardless of the status of those affected.
Government, and all of us, have responsibilities to respect rights. Let us not be searching for the truth about coronavirus in Kenya in 10 years time.