Truth team to go ahead despite Shifta war law

• Commissioners say Indemnity Act does not stand in its way and calls for its repeal

A law that shields security officers who took part in the Shifta war from prosecution will not stop a commission from investigating possible human rights violations.

The Truth, Justice and Reconciliation Commission on Tuesday ruled that the Indemnity Act did not stop it from discharging its mandate.

The statement followed a meeting of commissioners, led by its embattled chairman, Mr Bethuel Kiplagat, to review the Act and efforts being made by Parliament to repeal it.

“The Commission takes the position that the Indemnity Act does not and will not affect its ability to fulfil its mandate of investigating all violations of human rights committed throughout the country,” read a statement posted on the commission’s website.

“These include those violations that occurred between 1963 and 1967 in the areas covered by the Indemnity Act (North Eastern Province, and Isiolo, Marsabit, Tana River, and Lamu districts),” the statement quoted commissioner Ronald Slye as saying.

The commission also supported calls by a section of MPs to have the Act repealed on grounds that it denied those who lost loved ones to the Shifta war avenues of seeking justice.

ODM Kenya Nominated MP Mohammed Affey has prepared a Bill seeking to repeal the Act

The Act bars residents from filing any claims for compensation with respect to the period of the war.

The repeal, the MP says, is aimed at paving the way for aggrieved Kenyans in North Eastern Province to seek redress in courts of law and testify before the commission.

The commissioners who met on Tuesday observed that the Act did not bar the commission from inquiring into, investigating, analysing or making recommendations on human rights violations that took place in the region during the war.

Also, the law did not stop the commission from identifying those who committed atrocities and recommending their prosecution.

“Under basic principles of statutory construction, when two pieces of legislation cover the same issue and are in conflict, the later legislation is the operational law unless the later legislation makes it clear that the earlier legislation will still apply,” Prof Slye added.

He noted that even by its own terms, the Indemnity Act did not apply to the mandate of the commission.