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Local experts can tackle
human-rights abuses (but will they do it?
By EVANS MONARI
10. Feb. 2008
The recent events in Kenya have left deep scars that may take an
entire generation to heal. However, history has shown that in
order to achieve lasting peace, societies must deal with past
abuses through a process of truth telling, reconciliation and
justice.
Different societies need to create different formulae to overcome
the trauma caused by violence, bring about reconciliation with the
past and a sense of accountability for crimes and injustices
committed.
Several recommendations have been made with regard to the most
suitable institutions that should be established to determine
responsibility for the violence that was witnessed and to address
the root causes of some of the violence, which lie in the larger
history of the country. In addressing these institutions, their
functions and their respective roles, it is of importance to
highlight key issues in the promotion of justice and rule of law
and to tailor efforts to ensure that the institutions that are put
in place are aimed at maintaining a lasting peace.
The Kofi Annan-led team has recommended the setting up of a Truth,
Justice and Reconciliation Commission to look into the atrocities
committed by citizen against citizen. The United Nations has sent
its human-rights team of investigators into the country.
Does Kenya realise the extent of this development? Does Kenya not
already have a body set up for this purpose? Should we not
strengthen what we have instead of going into trials? Do we need
the international community in the process of truth and
reconciliation?
THE KENYA NATIONAL COMMISSION on Human Rights is established by
parliament and is mandated to investigate, inter alia,
human-rights abuses within Kenya. The commission is under the able
leadership of internationally renowned and respected human-rights
lawyers and is also mandated to ensure the promotion and
protection of human rights in Kenya.
The unfortunate events that were witnessed following the disputed
poll constituted crimes against humanity, punishable under
international law; very serious human-rights abuses were committed
that should be investigated and the perpetrators brought to
justice by the Commission.
Strengthening the commission and ensuring its independence is one
of the key reforms that should be given priority. It is of
importance to note that while any support to achieve the mandated
goals of the national human rights commission should be welcomed,
care should be taken not to weaken the institution.
A Kenyan human rights presence may be drawn from a pool of
activists and specialists in this field who should be provided an
opportunity to use their well-recognised skills for the good of
their country to conduct human-rights investigations. More
experienced human-rights officers should also work alongside
recruits in investigations and human rights reporting with the
additional aim of capacity building.
The country is fortunate to have well educated personnel in the
field of human rights and this talent should not be wasted.
However, the element of funding a national human rights presence
in the entire country is a key concern that should be addressed
alongside the establishment of an independent mechanism for
auditing of funds, guaranteeing transparency in the use of such
funds.
The recommendation to set up a Truth and Reconciliation Commission
(TRC) is indeed welcome and should hopefully achieve
reconciliation in the long-run. However, press reports have been
unclear in this regard, with some newspapers referring to a Truth,
Justice and Reconciliation Commission while others have referred
to a TRC. The two are not the same.
A TRC may be established to promote truth-telling, produce an
objective and impartial account of crimes against humanity and
serious human-rights abuses; and, to the extent possible, ensure
acknowledgement of responsibility for crimes against humanity and
promote national reconciliation for a lasting peace.
PRIOR TO TAKING ANY DECISION ON the mandate, organisation and
methodology of the TRC, an all-inclusive broad-based consultations
process should take place to ensure that the views of national
stakeholders. civil society, religious leaders and Kenyans are
reflected in the founding instruments of the TRC. The aim is to
generate a feeling of ownership and to ensure that the model
chosen fully incorporates national views.
The human rights presence and NGOs can complement the work of the
TRC by providing assistance in the widespread dissemination of
information relating to the TRC and any other mechanisms put in
place to promote truth telling, accountability and national
reconciliation; national consultations; national capacity building
(through training of trainers sessions) and the establishment of a
documentation centre that will be part of a memorial of these very
tragic events.
The essence of an information campaign is for the population to
understand the relevance and structure of the mechanisms. As part
of its capacity-building efforts, the human-rights presence may
for example train personnel assigned to the TRC in a series of
workshops on techniques such as sensitising witnesses, conducting
interviews. taking statements, carrying out research, case
management, use of computers and electronic databases. A database
of reported abuses would be established and if, for example,
previous cycles of violence are included in the mandate of the TRC,
a mapping exercise may also be necessary.
A TRC’s powers determine its strength. It is therefore important
to ensure that a strong, independent institution is established.
Witness protection is however a concern as persons who provide
information to the TRC may put themselves at risk and may receive
threats before or after testifying.
Already, threats are rife. The commission should consider the form
of protection available for witnesses, put in place special
measures for taking statements from children and make deponents
aware of these resources.
At the end of the process and depending on its mandate, the TRC
would produce a final report of findings of fact and make
recommendations for institutional reforms; prosecution of named
individuals or a general recommendation for further investigations;
reparations, sometimes including non-monetary elements such as
restitution of victims’ legal rights, symbolic measures such as
monuments and commemorative ceremonies aimed at achieving national
reconciliation; vetting programmes to remove abusive members of
the military, police, judiciary or civil service, although groups
of persons such as the judiciary must be protected against any
infringement on their independence.
So as not to lose credibility, the period of operation of a TRC
should be very clear, with shorter timeframes being recommended.
If a TRC goes on for too long, it can lose focus and ultimately
cease to interest the public.
A TRC can exist side by side with an institution set up to
prosecute international crimes, with both mechanisms being
independent of each other. Under international law, amnesty for
crimes against humanity, war crimes and genocide is not applicable,
which ideally means those who are alleged to have committed crimes
against humanity would still be prosecuted even if they appear
before a TRC. A TRC may also have the power to grant “use immunity”
to protect the rights of those who may be compelled to testify
against themselves, for instance when served a subpoena. The
individual is assured that the information provided would not be
used in any criminal proceeding. Such confidential agreements must
be respected.
THE NEED FOR JUSTICE, ACCOUNTability and national reconciliation
in Kenya cannot be over-emphasised. This is essentially the reason
why institutions that can bring about this end-result should be
established and/or strengthened. Weaknesses in the judicial system
should be identified and judicial reform should be a priority to
restore the faith of Kenyans in the rule of law. The police also
require training in the use of firearms and force as they appear
to have lost credibility in the eyes of the very citizens that
they should protect.
Within the justice system, a special chamber could be set up to
deal with international crimes, notably crimes against humanity
committed during the post-election period, with the chamber
comprising a mixed bench of international and local judges and an
international prosecutor to undertake independent prosecutions,
after reform of the judiciary and alignment of Kenyan laws with
international legislation is completed.
This is a system that has not been suggested, but should be
considered because the International Criminal Court would only
investigate and prosecute those who bear the highest
responsibility for international crimes, which would be a select
number. Such a chamber, located in Kenya and set up within a
strengthened and more effective justice system, would ensure that
more perpetrators are brought to justice.
Judicial reforms should also include minimum guarantees for fair
trials. The international community has long agreed that it is
paramount to ensure that those who bear responsibility for serious
violations of human rights should be prosecuted in accordance with
established standards of fair process.
Justice implies regard for the rights of the accused as well as
for the interests of victims and society. Experience has shown
that maintenance of peace in the long-term cannot be achieved
unless the population is confident that redress for grievances can
be obtained through legitimate structures for peaceful settlement
of disputes and fair administration of justice.
Evans Monari is a senior advocate and council member of the Law
Society of Kenya
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