The Truth, Justice and Commission Act (2008) states that the TJRC will only investigate historical injustices committed in Kenya between December 1963 and February 2008. Those advocating for the disbandment of TJRC claim that timeframe that should be investigated by the Commission is incomplete because some historical injustices were committed during colonial era. They wonder why the TJRC Act should be limited to post-colonial era yet problems such as land, violation of human rights, widespread impunity can be traced to pre-independence era. Opponents of the TJRC also argue that the Commission cannot achieve the intended goals as long as the Indemnity Act is still in existence in Kenyan laws. The Act grants individuals amnesty from prosecution for the human rights violations committed during the Shifta wars between 1963 and 1967 when Kenya’s security forces fought Somali-backed Northern Frontier District Liberation insurgents. The guerillas from the Northern Frontier District (comprising North Eastern Province and districts of Marsabit, Moyale and Isiolo in Eastern Province) supported Somali irredentism that aimed at uniting Somali speaking peoples into a Greater Somalia. Last year, a section of legislators who neither supported the ICC or special Tribunal suggested that the TJRC should be given prosecutorial powers to handle masterminds of post election mayhem. When the cabinet could not agree on either ICC or special Tribunal, the government decided to support TJRC approach towards solving post election violence. The exponents of ICC and special Tribunal have interpreted the new position of government on the trials of masterminds of post election chaos through TJRC as a way of escaping justice from the International Court of Justice or a special Tribunal.

Despite various reasons to oppose the TJRC, the country still needs a truth commission to redress past historical injustices. Gross violations of human rights of individuals and communities might be resolved effectively if the country pursues a multi-thronged approach to ensure that justice is done to the victims of the human rights abuses and sustainable peaceful co-existence between communities is enhanced. While criminal and retributive justice might be achieved via the formal justice systems such as the ICC, special tribunal and national courts, restorative justice could readily be attained through a credible, impartial and transparent truth commission. Between 1974 and 2007, there have been different versions of truth commissions formed to investigate systemic violations of human rights and fundamental freedoms in different parts of the world. It is high time Kenya tapped on experiences of recent truth commissions.

In July 1995, the South Africa’s Parliament established a Truth and Reconciliation Commission (TRC) to officially investigate the facts of atrocities, tortures and human rights abuses committed during the apartheid regime. Post-Apartheid government of President Nelson Mandela ensured that the TRC was established after a lengthy process of consultation and public deliberations with different stakeholders to enhance credibility and legitimacy. The commitment of top political and religious leaders set the tone of reconciliation and forgiveness and contributed immensely to the success of the commission. South African government also ensured that the truth about gross violation of human rights had to be established by employing fair procedures. The truth-seeking process during the TRC hearings also ensured that perpetrators fully and unreservedly acknowledged the offences they committed. Moreover, the TRC made sure that the human rights violations were made known to the public together with the identity of planners, perpetrators and victims. The Mandela administration also enhanced the legitimacy of the TRC by appointing Archbishop Desmond Tutu as the chair of the TRC. As a strong defender of human rights and a respected religious leader in the country, Tutu’s presence in the TRC was a boost to the restorative justice processes that South Africa needed to achieve national unity and morally acceptable reconciliation and forgiveness.

Kenya can learn a few lessons from South Africa. While the two countries have different historical contexts in which human rights were violated, it is important to note that methods and processes used by South Africa could benefit Kenya. Walks-outs that have dogged the Kiplagat-led Commission in recent days during the commissioners’ tour of Coast Province could have been avoided if the government did more consultations in choosing commissioners that could inspire faith towards such an important but complex process of unearthing the truth. While it is acknowledged that Ambassador Kiplagat has played an exceptional role in the regional peace processes, it is difficult for many to believe that he was a defender of human rights and dignity yet the government he worked for faithfully for several years notoriously violated its citizens’ rights. The Ambassador should ask himself why there is growing protest against his appointment to chair the Truth, Justice and Reconciliation Commission while some other Kenyans appointed to chair some commissions such as the Interim Independent Electoral Commission, Interim Independent Boundary Review Commission, National Cohesion and Integration Commission and Interim Taskforce on Police Reforms among others have not faced protest from the public or civil society activists. It is also important that the TJRC Act be amended to address some of the issues that will be covered during the investigation. Does the government fear that the inclusion of colonial period in the investigation will open a can of worms that will make it rub shoulders with some development partners?  Won’t it make sense to do away with the Indemnity Act so that the crimes committed during shifta wars, Wagalla massacres and other human rights violations in marginalized regions could be fully investigated?

During the negotiations between Party of National Unity and Orange Democratic Movement in early 2008 to resolve the political crisis caused by the contested presidential polls results, the Kenya National Dialogue and Reconciliation identified four agenda items. Agenda 4 was to address long term issues such as constitutional, legal and institutional reforms, land reforms, tackling youth unemployment, tackling poverty, inequity and regional development imbalances, consolidating national unity and cohesion, and addressing impunity, transparency and accountability. One of the means to achieve the issues raised in the Agenda 4 is to have a credible and impartial Truth, Justice and Reconciliation that can truly redress past historical injustices.