In a country with a public memory of a millisecond, this piece is probably being published after many have lived up to the new national motto of ‘accepting and moving on’. But I insist on revisiting the Report of the Truth, Justice and Reconciliation Commission and what it means for the country.
Nobody needs reminding of the reason for the existence of the truth commission. However, I will do so. The commission is a product of the Truth Justice and Reconciliation Act.
The Act was legislated in 2008 on the premise of, among others, the fact that the history of Kenya was riddled with contested claims on certain occurrences and why they happened.
In other words, there was recognition that there were some people in the country and some of the country’s institutions of governance that were simply averse to the truth and indifferent to justice.
They were pure subscribers to Napoleon Bonaparte’s statement, that “history is a set of lies agreed upon.”
The Act recognises that the contested narratives needed to be reconciled by fact finding. The citizenry needed to know the real history of the country — the truth, warts and all!
It also appreciates that justice is a pre-requisite for reconciliation, rather than a substitute for it. This is why even though it was modelled along the South African Truth and Reconciliation Commission (TRC); in Kenya it became a Truth Justice and Reconciliation Commission.
In other words, Justice was meant to be a cardinal component of this national undertaking.
The commission was tasked with establishing the extent of injustice and its sources in Kenya’s post-independence history: that is, from December 12, 1963 until February 28, 2008 — from the date of independence until the date the National Accord was signed following the crisis after the general elections of 2007.
The report should have been delivered a year ago, but the commission sought several extensions of its tenure. The reasons for these are partly explained in the report, but were not entirely due to circumstances beyond the control of the commission.
There was, for a time, unnecessary distraction following challenges on the suitability of the commission’s chairperson.
The completion of the report and its delivery to the public is commendable and an indication that the commission appreciated the compelling constitutional requirement for transparency and openness, even if it did not always live up to them.
What is disconcerting, however, is the fact that three of the commissioners dissociated themselves from the chapter of the report on land. This was not a good indicator of the dynamics of the working relations among the commissioners, especially since the three dissenters were non-citizens.
Although the reasons for the dissent were not divulged, it is now well known that the Executive arm of government was uncomfortable with the nuggets of truth in the chapter relating to land. This unfortunate scenario gives the impression that Kenya insists on an insular approach to land injustices, which it claims are too local for non-citizens to understand.
It further gives the impression that even the Kenyan commissioners have relented to the adage that land is too emotive to be discussed and that, therefore, no attempts should be made at understanding or prescribing solutions to the land problems in Kenya — let us adopt Napoleon’s version of history as convenient and agreeable mendacity.
Put simply, the problems relating to land are so sensitive that injustices around the resource should be let to fester. Move on! Very important people are involved!
The responses to the release of the report were predictable. Within hours of its release, opinions were divided between fervent supporters and instinctive opposition branding the report and its recommendations as wishful thinking and outright lies that could jeopardise national peace. The common trait among both supporters and opponents of the report was that they had not read it.
Granted, it is ambitious and maybe wrong-headed to expect most Kenyans to read anything approaching 2,210 pages.
But none of the protagonists and loud commentators thought they needed to read the report. The editorialised summaries were enough. Within hours of its release, many even contended that there was nothing new in the report!
Having read the whole report, I would recommend it to any person who wants to understand this country.
Firstly, the report revealed, and the various reactions to it exemplified, that Kenya is indeed a divided country. Except that the divisions are not based on ethnicity, language and political persuasion. Rather, the report shows chasms between the citizens who have been perpetual victims of injustice against unrelenting perpetrators of injustices of different kinds.
Throughout the web of that report, there is a thread that connects persons whose obsession with political power and wealth and its attendant prestige have caused harm endlessly to poor citizens, whether it is by grabbing their properties, stealing from the public coffers or even physically brutalizing their compatriots and, if need be, assassinating their supposed political competitors.
Innocent blood shed
Secondly, it also shows that a significant part, if not most of the citizens of this country, are indifferent to the suffering and injustices that others face. Provided it does not affect their personal well-being, to most Kenyans, it does not matter that several massacres have been conducted against other citizens in the name of keeping the peace.
The number of mass murders that the report designates as massacres in this country is simply shocking. I did not know, for instance, that in the same year in which there was the fairly well-known ‘Wagalla massacre,’ another one occurred at a place called Lotirir! It is this indifference and intentional disregard for the suffering of other citizens that forms the fuel for the “move on” brigade.
Linked to the indifference is the argument by opponents of the report as to whether it seeks to allocate blame and whether it has evidence of liability by the persons named in it.
This leads to the third take-away from the report: whatever, we think of the commission’s forensic skills and the weight of the evidence the commission considered, the fact is someone who then held serious responsibility in the state was behind the “Wagalla and Lotirir massacres” as well as the others.
It is equally true, whether or not we have evidence of the actual perpetrators, that assassinations have been a means of political craft in Kenya. It is no less true that a number of persons, their associates, and progeny have accumulated bountiful wealth from acts of larceny directed at public property.
The argument as to whether there is evidence as to who perpetrated these injustices is just that part of the national psyche of indifference. This indifference leads to the discomfort with the report which manifests itself in raw legalism: Where is the evidence?, assertions of the presumption of innocence until a court makes a pronouncement of guilty and many such refuges of the morally culpable.
It also shows a citizenry which finds truth loathsome, justice a waste of time and reconciliation simply a euphemism for the real statement that losses and gains should lie where they fall; for the sake of peace let the perpetrators keep the fruits of their injustices and the victims accept their lot.
Allied to that loathing of the truth is the hypocrisy that was evident in the country over the years. Looking at the chronicles of the report and our history, it is surprising that the state in Kenya publicly abhorred the acts of the apartheid regime in South Africa in the 1960s to1980s.
Yet, at that time, the two governments were strange bedfellows in the way they treated their citizens. This hypocrisy is best exemplified by the fact that in the months of September and October, 1977, while Kenya joined the world in condemnation of the circumstances under which Steve Biko was jailed and brutally beaten to death under laws which permitted detention without trial for up to 90 days in South Africa, in Kenya the government was opposing calls by some MPs to repeal the laws which permitted detention without trial.
It is this ability to stare both eyeballs with irreconcilable stances that was evident recently when everyone was jubilant that the British government would compensate up to 5,228 Kenyans who were mistreated in prison camps before independence.
This legal victory was brought about by the brilliant tapestry of expert revisionist historians and international human rights law weaved together by British lawyers (I admit one of them is my friend) and the Kenya Human Rights Commission.
While it was the British Foreign secretary expressing regret for this kind of maltreatment years ago, it was good, but when it comes to the recommendation for similar action by the arms of government in Kenya , the response is that this is civil society dreaming that senior government officials should apologise for crimes that they did not commit.
The report also demonstrates that since 1963, the Kenyan state and its agencies have conflated public security with the personal political survival of the regime in power, peace with the absence of dissent on the part of the citizen and prosperity with the personal accumulation of wealth by that elite in power.
In other words, the ordinary citizen has no place in governance, except as a source of taxes, loyalty and object of oppression.
For that reason, skeptics of the report cannot be blamed because they may have been led to believe that justice is no more than the interest of the strong. There is sufficient evidence in Kenya’s history that this has indeed been the case.
Case for reparation
The recommendations in the report on reparations are very bold and ambitious but it is likely that they came from Plato’s Republic idea that justice consists of speaking the truth and paying one’s debts.
The report was not ambitious enough to dream that the beneficiaries of the ill-gotten wealth will find ways of recompense towards those from whom they took goods and land.
The TJRC may have committed one error: it went beyond its mandate by its extensive reference to colonial history as the seed which sprouted into the injustices that were later perpetrated by the post-independence state.
The statute which established the commission was clear that the scope of its examination was between December 12, 1963 and February 28, 2008.
There is a tendency in Kenya to obfuscate the injustice by blaming colonial experiences for the subsequent failures of the republic. We should forego our journey along this path.
Instead, the TJRC report behooves Kenyans to take responsibility for the lost half century, and strive to ensure that justice and the rule of law become the foundation on which Kenya shall be built going forward. Only then will there be a real chance at reconciliation.
The writer is Head of Legal Services, Nation Media Group.