MPs divided over TJRC mandate proposal

MPs are divided on whether the Truth Justice and Reconciliation should be given a further extension of its term.

On one hand are those who feel the long-awaited TJRC report should be delayed until after the coming General Election. There is a feeling that releasing the report at this time when the country is headed to a crucial election could cause an explosion of violence given the sensitivity of information it contains.

On the other is a group that feels a betrayal of some sort that the report will come much later than had been anticipated. This comprises those who had invested emotionally and believed in the TJRC’s outcome to bring about justice and healing.

The commission is seeking a nine months extension to be backdated to August this year.

An amendment to the TJRC Act proposing the extension was presented to Parliament last week by Justice minister Eugene Wamalwa, who argued that it should be necessary to allow the team to clear its mandate.

Mr Wamalwa put up a strong defence for the commission saying it needs the time to allow those so far mentioned in the report in connection with various injustices time to clear their names.

The argument was seen as calculated to cool the hostility that MPs harbour towards the commission having already extended its term twice before.

Quite a number feel that Parliament has been too generous with the team that was tasked to promote peace, justice, national unity, dignity, healing and reconciliation among Kenyans.

TJRC was established as part of the Agenda Four of the National Reconciliation and Dialogue Accord that helped bring the 2007/2008 post-election violence to an end.

It was mandated to inquire into and investigate historical injustices and gross human rights violations, including violation of socio-economic rights that occurred between December 12, 1963 and February 28, 2008.

Initially, the commission had been given two years. Its term would thus have ended in November 2011. The commission was never able to meet this timeline. It put in a request for an extension through Parliament, which it was given without any opposition.

MPs unanimously supported a six months extension up to May 3, this year.

Still, it was unable to complete its work even within the extended period and sought, yet another extension of three months through the Statute Law (Miscellaneous Amendments) Act, 2012.

Hostility

Even this was not sufficient enough for the team to conclude its work. Perhaps predicting hostility from MPs as it planned to seek, yet another extension, the team set out to lobby the legislators and other stakeholders during the one month recess, to support the nine months extension.

MPs were invited for a retreat where the commission passionately implored them to back them.

However, not all MPs were persuaded, given that they felt Parliament has been already very generous in granting some extension before.

Their position is drawn from the understanding that the commission wasted valuable time at the start of its work wrangling about its leadership.

The lengthy battle against the chairperson Bethwell Kiplagat left Kenyans wondering how a team mandated to reconcile and bring about peace could manage to handle sensitive matters having started on such a footing, publicly displaying inability to have cohesion amongst its members.

In the words of Kisumu Town East MP Shakeel Shabir, TJRC became a mockery, a joke and a battle ground for selfish gain.

Mr Wamalwa, however, in pleading for an extension of the team’s term argues that it is necessary if the team is to give a comprehensive report.

“However unhappy we may be with the Chairman and his Commission, I beseech Members not to throw out the baby with the bath water, because really it will be a waste of all the resources that have been put in so far,” he stated.

Mr Wamalwa argues that TJRC’s experience is not unique, citing similar cases from South Africa and Timor.

In South Africa, he says, the Truth and Reconciliation Commission had been granted three years from 1995 when it was established. It was supposed to hand in its report in 1998, three years later, but this was not done until 2002. It took a period of about seven years.

The minister argues that Kenya and South Africa share similar challenges of amnesty to those who had committed political atrocities. He cites issues of reparations, rehabilitation and reconciliation that he said, required the South African to give their Commission a little bit more time than had been initially given.

In Timor, the Commission was set up in 2001 and was supposed to deliver its report in 2002. But it did not discharge its mandate until 2005, after several time extensions. The Timor one was to investigate atrocities committed between 1975 and 1999, a period of about 25 years.

The Kiplagat-led Commission is mandated to investigate the atrocities spanning a period of 45 years, an entire independence history.

The commission, according to the minister, requires an extra mandate to deal with the question of justice.

“Talking of justice to thousands of Kenyans over 45 years and doing it within a limited period of two years, perhaps we underestimated the period and the magnitude of the mandate that we had given them,” he states.

The commission has been asked to look into atrocities committed, including the political assassinations of Tom Mboya, Robert Ouko and all those who were assassinated during this period. It was also tasked to look at the sensitive land issues.

A progress report was tabled in Parliament indicating that the commission is now at the report writing stage.

Nominated MP George Nyamweya a Member of the Justice and Legal Affairs Committee who is opposed to the nine months extension terming it unnecessary says it only needs to be given time to write its report.

The MP wants the nine months reduced to six months.

The commission should have handed in its report in May. The Act required the Commission to hand over the Report to the President by May.

If granted the extension being sought, the team will now be expected to submit the report in May next year.

Mr Nyamweya’s extension, however, seeks to reduce the period so that the commission is required to submit the report in January, before the March 4, 2013 General Election.

Adversely mentioned persons

According to the Justice minister, the real challenge to the Commission is the issue of the adversely mentioned persons.

In the course of receiving over 42,000 statements from Kenyans around the country, many names have been mentioned, in the previous governments and in the incumbent, according to the Ministry of Justice

“People in high places have been mentioned and also sensitive matters touching on land that have created tensions in this country,” Mr Wamalwa told Parliament last week.

He argues that rules of natural justice require that they must be accorded an opportunity which includes being given notice of the adverse mentioning.

“They must be given the opportunity to come and clear their names before the report is made public,” he said in an argument that was bound to soften some hearts.

The commission argues that it would do great injustice to those who have been adversely mentioned if the report was to be released without giving them due notice and the opportunity to clear their names.

“This report will go into the record of this country. It will form part of our history right from independence,” the minister said.

“It will be handed over from generation to generation. When the children of Kenya read this report and look at what happened over the last 50 years, they will know that so-and so, this community or that official in this government did this or that,” he argued, emphasising the need for accuracy of the information to be contained in the final report.

Defence assistant minister David Musila, says there is no doubt that Kenyans are eagerly waiting for the TJRC report.

He says the request for extension was reasonable, arguing that it would be a waste of huge public resources if the Commission was not given a chance to complete its work and submit its report.

Government chief whip Jakoyo Midiwo (ODM) however, supports the extension and even says it should have been for a one year period.

The MP says the extension was a must, claiming that ‘whatever is in the report is lethal.’ “They need to look at it because it cannot be released haphazardly. It cannot be left out there without a Commission. Right now, it is dangerous,” he warned.

According to the MP, the report could cause serious hostility and fighting if released now.

“This is because it has truth which is inflammatory. It needs to be done when people are sober and debated in this House when it is full and not with a handful of Members. We can only do that next year,” he states.

Nominated MP Mohammed Affey says TJRC must never ask again even for one extra day, because Kenyans "are desperate".

The MP has drafted The Gross Human Rights Violations Compensation Bill which is lying in the Speaker’s Office seeking to tackle more or less some of the issues tasked to the commission.

Ikolomani MP Boni Khalwale opposing the extension argues that TJRC was not an afterthought.

He says the intention of the TJRC report was to try and have a situation where it would inform the forthcoming elections.

"Indeed, if the elections of 2013 were held at a time when Kenyans have read this report, then they would know that this is a standard that they can apply by way of Chapter 6 of the Constitution in testing the suitability of those who aspire to high office in this country,” the MP states.