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UNCLAS SECTION 01 OF 03 NAIROBI 001170 
 
SIPDIS 
 
LONDON AND PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PREL PHUM PGOV KDEM KE
SUBJECT: UPDATE ON COMMISSION OF INQUIRY INTO POST-ELECTION 
VIOLENCE AND COMMISSION FOR TRUTH, JUSTICE, AND 
RECONCILIATION 
 
REF: NAIROBI 969 
 
------- 
 Summary 
 ------- 
 
¶1.  As a result of the Kofi Annan-led mediation efforts to 
end Kenya's post-election crisis, Kenya's political leaders 
agreed to form a Commission of Inquiry on Post-Election 
Violence (Violence Commission) and a Truth, Justice, and 
Reconciliation Commission (TJRC).  The Violence Commission is 
preparing to begin work; its Kenyan Chair and two 
international Commissioners have been appointed and are 
drafting rules of procedure and work plans.  The TJRC has not 
yet been formed.  Enabling legislation for the TJRC has been 
gazetted and should be debated in parliament soon.  TJRC 
commissioners have not been named.  Civil society groups have 
called for more transparency in the work of these commissions 
and have criticized aspects of the TJRC draft legislation.  A 
third commission, the Independent Review Commission, has 
already begun its work on a top-to-bottom review of the 
flawed 2007 elections (reftel).  A fourth commission on 
constitutional reform is still in the discussion stage.  We 
will follow the work of these commissions and will engage 
with political leaders when necessary to encourage 
non-interference in their work and implementation of the 
commissions' recommendations.  End Summary. 
 
--------------------------------------------- -- 
Commission of Inquiry on Post-Election Violence 
--------------------------------------------- -- 
 
¶2.  The Commission on Violence is a non-judicial body 
composed of three Commissioners -- a Kenyan Chair and two 
internationals who are either respected jurists or experts in 
communal conflict.  The Commission on Violence has begun 
setting up shop and informally receiving evidence; we expect 
it to begin formal operations in the near future.  Its 
mandate is for three months, with a possible one-month 
extension.  The Violence Commission plans to investigate 
facts related to the acts of violence that followed the 2007 
Presidential elections, including acts and omissions of state 
security agencies.  At the conclusion of its work, the 
Violence Commission will prepare its report, which will 
contain findings of fact and recommended measures to prevent 
future violence as well as proposed redresses or legal 
actions.  The work of the Commission is expected to be 
considered by the TJRC as it undertakes its investigations. 
 
¶3.  The Panel of Eminent African Personalities (the Panel), 
in consultation with Party of National Unity (PNU) and Orange 
Democratic Movement (ODM) negotiating teams, has named Kenyan 
Appellate Judge Philip Waki as Chair.  (Note: Waki had been 
suspended from the bench due to allegations of corruption. 
However, he fought the allegations and a tribunal reinstated 
him.  End Note.)  The international commissioners appointed 
are Pascal Kambale, a Congolese human rights lawyer currently 
working with the Open Society Institute in New York, and 
Gavin McFayden, a former assistant police commissioner of the 
New Zealand national police.  The team is currently 
formulating its rules of procedure and work plan. It should 
begin work by the end of May. 
 
--------------------------------------------- ---- 
The Truth, Justice, and Reconciliation Commission 
--------------------------------------------- ---- 
 
¶4.  The TJRC must be established by an act of parliament, 
which has yet to occur.  Its mandate will be to investigate 
human rights violations committed by the state, groups, or 
individuals since Kenya's independence in December 1963. 
These violations include politically-motivated violence, 
community displacements, settlements, and evictions.  The 
TJRC may also investigate economic crimes -- such as 
corruption and historical land injustices -- which have 
contributed to conflict and violence in Kenya.  While its 
terms of reference limit the TJRC to investigating 
post-independence events, it may look into pre-independence 
events to understand root causes that may have led to 
 
NAIROBI 00001170  002 OF 003 
 
 
post-independence human rights violations. 
 
¶5.  The TJRC will have seven Commissioners (three 
internationals and four Kenyans) with gender balance taken 
into account in making appointments.  The Kenyan 
Commissioners will be chosen through a consultative process, 
with public input.  The appointment of international 
commissioners will be made by the Panel of Eminent African 
Personalities (the Panel), taking into account public input, 
but subject to agreement of the PNU and ODM negotiating 
teams. 
 
¶6.  The TJRC has a two-year mandate, after which it will make 
recommendations to advance reconciliation as well as 
institutional and other reforms.  It may recommend 
prosecutions for past acts.  The TJRC will deliver its report 
to the President and publish the report within 14 days of 
delivery.  Parliament also will debate the report. 
 
¶7.  The Attorney General's Office has prepared a TJRC Bill 
and consulted with respected lawyers representing prominent 
non-governmental organizations.  Contacts involved in the 
review were supportive of the draft generally, stating that 
it reflected the spirit of the agreement.  We hear from 
parliamentary sources that the TJRC Bill will be gazetted on 
May 9.  At parliament, the bill will be considered by the 
Legal Affairs Committee, which will also receive public input 
on the bills and then send the Bill for debate to the entire 
house. 
 
-------------------------------- 
Civil Society Criticize Process 
And Substance of Draft TJRC Bill 
-------------------------------- 
 
¶8.  Civil society organizations (CSOs) have criticized the 
shortage of public consultations on the TJRC Bill.  CSOs have 
also criticized the substance of the Bill as drafted by the 
AG's Office.  There are concerns that the mandate of the TJRC 
contained in the Bill is too broad and will prevent it from 
completing its work within its two-year mandate.  They have 
criticized tight timelines for the selection of commissioners 
and the inclusion of amnesty provisions which could be 
interpreted to offer amnesty for perpetrators of crimes 
against humanity or war crimes, in abrogation of Kenya's 
international obligations.  They also criticize that the 
Minister of Justice is granted, along with the Treasury, 
authority to "scrutinize and approve" the TJRC budget and 
have input into the compensation for staff and commissioners. 
 They also object to the Implementation Committee being 
formed by, and reporting to, the Minister of Justice.  They 
fear this expansive role could be used for political 
purposes.  Another major concern is the inclusion of a 
reparations process administered by the TJRC, which they fear 
would skew the mission of the TJRC to being largely about 
reparations, to the detriment of truth-finding and 
restorative justice. 
 
-------------------------------- 
Constitutional Reform Commission 
-------------------------------- 
 
¶9.  The negotiating parties at the Annan-led mediation talks 
also agreed to form a constitutional reform commission. 
Currently, no steps have been taken to establish this 
commission.  The need for this commission is still being 
debated.  Strong sentiment from parliament -- which considers 
constitution-making its bailiwick --  and the existence of 
the African Union Secretariat, left behind by Kofi Annan to 
handle the reform Agenda negotiated by the parties, may make 
this commission redundant.  We will continue to follow 
developments. 
 
------------- 
The U.S. Role 
------------- 
 
¶10.  We are working the United Nations, the European Union, 
its member state missions and other like-minded missions to 
 
NAIROBI 00001170  003 OF 003 
 
 
closely follow the work of the commissions to help ensure 
that they deliver a credible result.  We chair or co-chair 
donor committees focused on each of the commissions.  We 
should consider providing necessary technical/funding support 
if and when needed.  We have made clear to the coalition 
government at the highest levels that we attach great 
importance to the work of the commissions and to the carrying 
out of the reform agenda (constitutional, electoral, land). 
 
------- 
COMMENT 
------- 
 
¶11.  Kenya has clearly caught commission fever.  It would be 
premature to call this too much of a good thing, but that 
possibility certainly bears watching.  On the other hand, it 
is indisputable that their is a mammoth amount of work to be 
done to repair deep fissures within Kenyan society and 
government, so perhaps there is a place for these 
organizations.  In any event, the standing up of these 
commissions is moving forward.  Critical issues remain, such 
as the adoption of rules of procedure, evidence, work plans 
and, in the case of the TJRC, the appointment of 
commissioners.  The resolution of these issues will determine 
the transparency and effectiveness of the commissions. 
 
¶12.  Finally, we note that the mandates of the Commission on 
Violence and the TJRC could at times be at odds with one 
another, as their respective "retributive" and "restorative" 
justice will almost certainly deter some potential witnesses. 
 Nevertheless, the commissions represent the interests (and 
legitimate grievances) of different groups of Kenyans, and 
neither can be ignored.  It is important that these 
Commissions break with prior practice -- commissions of 
inquiry historically have resulted in little or no action in 
this country -- and deliver on Kenyans' high expectations. 
End Comment 
RANNEBERGER