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UNCLAS SECTION 01 OF 02 NAIROBI 002768 
 
SIPDIS 
 
LONDON, PARIS FOR AFRICA WATCHERS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM KDEM KCRM KE
SUBJECT: PRESIDENT SIGNS TRUTH, JUSTICE, AND RECONCILIATION 
LAW 
 
REF: NAIROBI 1170 
 
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 SUMMARY 
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¶1.  On November 28, President Mwai Kibaki signed into law the 
Truth, Justice, and Reconciliation Act (the Act).  The Act 
creates a Truth, Justice and Reconciliation Commission (TJRC) 
to establish a complete record of violation of human and 
economic rights from the time of Kenya's independence in 
December 1963 until February 28, 2008, the date of the 
signing of the power-sharing agreement that ended Kenya's 
post-election crisis.  The TJRC is empowered to grant amnesty 
to individuals who make a complete, truthful admission of 
wrongdoing, and to recommend prosecution where evidence 
warrants.  It has the power to order reparations and the Act 
creates a reparation fund.  The TJRC will operate for two 
years, with a possible six-month extension.  The TJRC's broad 
mandate and the short time to complete its work is 
problematic, and the track record for similar commissions is 
mixed.  The inclusion of a reparations mechanism within the 
TJRC threatens to overwhelm the body.  We are concerned about 
aspects of the Act that may permit undue government influence 
of the TJRC.  Also, the Act's amnesty provisions do not 
preclude amnesty in cases of crimes against humanity, 
providing a potential escape route for high-level organizers 
and financiers of the 2007 post-election violence who will be 
tried in a special tribunal, which Parliament is expected to 
establish imminently (Septel).  End Summary. 
 
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THE TRUTH, JUSTICE, AND RECONCILIATION ACT 
------------------------------------------ 
 
¶2.  The Truth, Justice, and Reconciliation Act (the Act) is a 
product of the Kofi Annan-led mediation process which 
resolved Kenya's post-election crisis.  The Orange Democratic 
Movement and the Party of National Unity both recognized that 
unresolved historical grievances contributed greatly to the 
severity of the post-election violence.  The stated goal of 
the Truth, Justice, Reconciliation Commission (TJRC) is to 
foster national unity by providing Kenyans a forum in which 
to air their grievances and be compensated for injustices 
suffered. 
 
¶3.  The Act was passed by parliament in early November and 
signed into law by President Mwai Kibaki on November 28.  The 
Act does not vary significantly from the bill submitted to 
Parliament in May.  There will be nine commissioners.  The 
six Kenyan Commissioners will be selected through a public 
application process.  The Act establishes a selection panel 
comprised of representatives of religious groups, trade 
unions, the Law Society of Kenya and other groups, which will 
rank applicants and provides its rankings to Parliament. 
Parliament will nominate the six Kenyans to be Commissioners. 
 The three international Commissioners will be nominated by 
the African Union Panel of Eminent Personalities.  All 
commissioners will be appointed by President Mwai Kibaki. 
The TJRC will have a two year mandate in which to examine 
violations of human and economic rights dating from Kenya's 
independence in December 1963 until February 28, 2008. 
 
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AN AMNESTY MILL? 
---------------- 
 
¶4.  The TJRC is entitled to recommend that the President of 
Kenya grant amnesty in exchange for complete, honest 
admissions of human rights violations and economic crimes. 
It may also recommend prosecutions where evidence warrants. 
The TJRC may recommend amnesty only after  the victim(s) of 
the crime(s) have been heard.  Additionally, the TJRC may 
only recommend grants of amnesty for economic crimes if 
restitution is made.  The TJRC may not recommend grants of 
amnesty for gross violations of human rights, defined as 
violation of fundamental rights, such as torture, killing, 
abduction, rape and other forms of gender-based violence, and 
other crimes.  Controversially, the Act as written does not 
preclude amnesty for crimes against humanity and genocide, in 
violation of Kenya's obligation under international law. 
Upon receipt of an application for amnesty, TJRC may request 
that pending criminal proceedings arising from the acts in 
the amnesty application be suspended until the application is 
 
NAIROBI 00002768  002 OF 002 
 
 
considered.  This opens a potential conflict between the TJRC 
and the Special Tribunal that Parliament is expected to 
establish to try high-level organizers of post-election 
violence (Ref a and Septel).  Because the TJRC's mandate 
includes the period of post-election violence also covered by 
the Waki Commission report, a defendant at the Special 
Tribunal not charged with gross violations of human rights 
may apply to the TJRC for amnesty, which, if granted, could 
allow suspects to be pardoned by President Kibaki. 
 
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REPARATIONS AVAILABLE 
--------------------- 
 
¶5.  The Act establishes a reparations process allowing anyone 
who has suffered from a gross violation of human rights to 
apply to the TJRC for reparations.  Reparations are to be 
made from a reparations fund, which is also created by the 
Act and which will be financed through the budget.  Victims 
of economic crimes are not eligible to apply to the 
reparations fund.  The Act requires perpetrators of economic 
crimes to pay restitution as a condition of receiving 
amnesty.  However, the Act does not clarify to whom 
restitution should be made nor does it create a process for 
persons whose economic rights have been violated to be 
compensated. 
 
------------------------ 
CIVIL SOCIETY FAULTS LAW 
------------------------ 
 
¶6.   Civil society groups have criticized the Act.   Their 
basic concern is that the Act emphasizes amnesty to the 
detriment of justice.  One civil society leader termed the 
TJRC an "amnesty commission."  Some civil society leaders 
have also observed that the TJRC will rely on police 
assistance to investigate acts coming under its mandate. 
They fear that the police will be unwilling to undertake 
transparent investigations where powerful persons or police 
personnel are involved.  Civil society leaders also fear that 
the Act allows room for political interference.  They point 
to a clause that allows the President to appoint the 
Chairperson of the TJRC.  International best practice, they 
argue, is to allow commissioners to elect a Chairperson from 
amongst themselves.  They also fear that the role of the 
Minister of Justice, National Reconciliation, and 
Constitutional Affairs in setting TJRC salaries and approving 
the annual operating budget might allow for political 
interference in the work of the TJRC. 
 
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COMMENT 
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¶7.  As is often the case with commissions in Kenya, the 
success of the TJRC will depend on the quality of the 
commissioners selected.  The transparent selection process 
for commissioners is commendable.  However, the TJRC has been 
given an over-broad mandate and a short time in which to do 
its work.  Inclusion of a reparations process within the TJRC 
will tax the resources of the TJRC, allowing less time for it 
to focus on its truth-finding and restorative justice goals. 
The government previously stated that the TJRC will be funded 
without donor support and the Act states that the TJRC will 
be funded through the consolidated fund of the budget. 
However, the government has not provided any cost estimates 
for the TJRC and the reparations fund.  The Act includes a 
provision allowing donations to be made toward the operation 
of the TJRC and the reparations fund, an acknowledgment that 
the government may be unable to finance the TJRC fully. We 
will continue to follow closely developments related to the 
TJRC.  End Comment. 
RANNEBERGER