Table of contents

INTRODUCTION....................................................................................................................2

Spain: The Amnesia Model....................................................................................................2

Ethiopia: The Selective Punishment Model...........................................................................3

Guatemala: The Historical Clarification Model.....................................................................4

South Africa: Mixed Memory and Punishment Model..........................................................5

Uruguay and Argentina: Blanket Amnesty After Truth Telling .............................................7

Kenya: A Case for a Truth and Reconciliation Commission................................................8

Values of the commission.....................................................................................................10

Goals of the Commission.....................................................................................................10

Objectives of the commission..............................................................................................11

Functions of the commission................................................................................................12

Structure of the Commission................................................................................................13

National level...................................................................................................................13

The Amnesty Committee..............................................................................................14

The Truth and Inquiry Committee................................................................................14
The Reparations Committee.........................................................................................15
The Commission Support Centre.................................................................................15
Community Level.............................................................................................................16

The Mediation Baraza..................................................................................................16

Remedies..............................................................................................................................18

Resettlement of Internally Displaced People...................................................................18

Retribution of perpetrators of crimes against humanity and genocide.............................18

Reparations ......................................................................................................................19

Demobilisation, disarmament and reintegration programmes.............................................19

Conclusion ..............................................................................................................................20

Bibliography...........................................................................................................................22

1
INTRODUCTION
The term transitional justice captures two critical notions. First, it acknowledges the
temporary measures that must be implemented to build confidence for the construction of a
state ravaged by human rights violations and the plunder of public resources. Secondly, by its
own definition, it rejects the application of any rigid set of norms or criteria as a beachhead to
the future. In other words, transitional justice calls for deep concessions on either side of the
divide, between victims and perpetrators. No single party or faction can be fully satisfied.
Non-concessionary demands or non-conciliatory denials can only foil the truce that is
essential for national reconstruction. But equally important is the realization that transitional
justice does not mean impunity for the most hideous offenders, for to do so would be to
encourage a culture of unaccountability for past abuses. Hence a balance must be struck
between, on the one hand, justice for the victims and some form of retribution against some
of the offenders, and on the other hand, a measure of magnanimity and forgiveness on the
part of victims. This is the plausible path if reconciliation is to become a reality.

Spain: The Amnesia Model1

In this instance, the new regime makes a conscious decision not only to avoid prosecutions of
past offenders, but even shuns widespread public discussion about their having taking place in the
first place. To style this as the “amnesia model” is not to suggest that there will not be many
individuals who will continue to remember the past in all its traumatic detail and to insist that
great crimes were committed. The point here is that these tend to remain in the private domain
and do not become the object of widespread attention in the press, the political process or even
the judiciary.

The best example of this approach to transitional justice is probably that of Spain, in the years
following the death of Generalissimo Francisco Franco in 1975. Some twenty years after his
death, an official in the then-ruling Spanish Socialist Party touched on the key themes here when
she commented, “it seems like a century ago that he died. Nobody discusses that past much. We
never even really faced that past.”

1
Githongo, J. ‘International Models of Transition Justice’ Dealing With The Past: Economic Crimes And The
Transition Public Forum organised by Transparency International Kenya (TI-Kenya) and the
Law Society of Kenya (LSK), Nairobi, August 1, 2002, p12.

2
And yet there was plenty to account for in the Franco past, particularly in terms of its abysmal
human rights record, especially during the earlier period of the Franco regime. As democratic
institutions began to establish themselves in Spain in the period after Franco’s demise, there was
little public pressure for trials of the principal figures involved in human rights abuses of the past,
nor was there even much of a call for some type of “truth commission” to examine the full extent
of these abuses.
A number of factors are commonly cited to explain this:
1. Economic crisis: Spain by 1975 was facing a severe economic crisis due to the incompetence
of the Franco regime.
2. Threats to national security united the country: There was a rising tide of terrorism in the
country, notably from the Basque Liberation Movement (ETA).
3. Spain was also undergoing what Samuel Huntington called a “transformation” scenario, in
which the elites in power take the lead in producing democratisation, even though this is often
accompanied by tacit or open negotiations with important opposition groups.

A special characteristic of the transformation process is that since members of the old regime are
principal players in the transition to a new democracy, the fervour for punishment of this regime
is typically less intense than in situations where its resistance to change has continued to the last
moment. As a practical matter, moreover, agents of the former regime typically insist on
guarantees of immunity in return for their acquiescence to a new political order.
Under the circumstances, it seemed that the vast majority of Spaniards felt it necessary to focus
all the country’s energies on dealing with the twin challenges of the economy and terrorism, and
to eschew steps to deal with the past as essentially unnecessary diversions from this task. Prime
Minister Adolpho Suarez said at the time that “the question is not to ask people where they are
coming from, but where they are going to.” All in all, then, the Spanish transition stands out as
almost an ideal model of the “determination to forget.”

Ethiopia: The Selective Punishment Model2

A second form of transitional justice that lies at the opposite end in terms of the reconciliation
retribution spectrum may be styled as the “selective punishment” paradigm. In this case, the
principal political figures from the previous regime, as well as prominent members of the security
forces identified with torture and similar conduct, are subject to formal legal action and sanction.
This does not just involve loss of civil or political rights (such as holding governmental office)

2
Githongo, J. ‘International Models of Transition Justice’ Dealing With The Past: Economic Crimes And The
Transition Public Forum organised by Transparency International Kenya (TI-Kenya) and the
Law Society of Kenya (LSK), Nairobi, August 1, 2002, p13.
3
but actual trial and incarceration and—in the most extreme cases— even execution. Following
the overthrow of the Mengistu regime in 1991, the new government indicted over 3,000 members
of that regime for criminal acts and instituted what was sometimes described as the “Nuremberg
trials of Africa,” although subsequent judicial proceedings have slowed to a snail’s pace.

Guatemala: The Historical Clarification Model3

There are two other major paradigms of transitional justice that can be identified, and each of
these occupies distinct intermediate points along the line of the retribution-reconciliation
spectrum. The first of these to be considered is what might be called the “historical clarification
model.” In this instance, there is some attempt to confront and document the abuses of the past
(unlike Spain), but at the same time the identification of specific individuals responsible for such
abuses is eschewed and, it follows logically, no formal legal proceedings are instituted against
those responsible for human rights violations (unlike Ethiopia). Perhaps the best contemporary
example of this model is that of Guatemala.

After the overthrow of the leftist government of Jacobo Arbenz in 1954, Guatemala evolved into
a society in which social stratification was extremely pronounced. As of the early 1990’s,
according to a report from the Organisation of American States, 77% of Guatemalan families
lived below the poverty level; health programmes covered only 14% of the population and a third
of the Guatemalan people suffered from malnutrition. It also became a country where a culture of
violence became pervasive as the political and economic elite sought to maintain the privileges of
its position.

From 1960, leftist rebels waged a war to topple the rightist military-controlled government and to
bring at least some measure of social justice to the country. The government’s response was
brutal and in the course of a 25-year civil war, up to 200,000 civilians were killed. Under the
auspices of the United Nations, negotiations between the Guatemalan government and the
Guatemalan National Revolutionary Unity (URNG) guerrillas eventually resulted in a 1996 peace
accord, and as part of this agreement, both sides agreed to the formation of the so-called
“Historical Clarification Commission,” which was charged with examining the abuses that had
taken place during the civil war without “individualizing responsibilities.”

3
Githongo, J. ‘International Models of Transition Justice’ Dealing With The Past: Economic Crimes And The
Transition Public Forum organised by Transparency International Kenya (TI-Kenya) and the
Law Society of Kenya (LSK), Nairobi, August 1, 2002, p13.

4
This seemed to be an ornate or at least roundabout way of saying that no names of the guilty
would be offered in the final report. The Clarification Commission, initially established in June
1994, issued its final report on February 25, 1999, styled as the “Guatemala: Memory of Silence.”
The document ran some 3,400 pages, with about 2,000 pages devoted to individual cases, and the
remaining text offering a general analysis of the conflict.

The report was unsparing in its overall assessment. Christian Tomuschat, its co-coordinator and a
German jurist, said that while the guerrilla groups had been guilty of their own atrocities,
government forces had been responsible for the vast majority of the killed or missing (including
626 outright massacres). “Believing that the ends justified everything, the military and the state
security forces blindly pursued the anti-Communist struggle, without respect for any legal
principles or the most elemental ethical and religious values, and in this way completely lost any
semblance of human morals.” The main objective of successive Guatemalan governments,
according to the report, was to crush dissent from the deprived elements of Guatemalan society,
and in particular the term “genocide” was used to describe these measures, and the Commission
called for the institution of legal proceedings against those responsible for such outrages.
To date, the government has ignored this recommendation, and there seems little reason to
assume that it will change its position any time soon, particularly given the continuing heavy
influence of the military and the security forces in Guatemalan society and their disinclination to
accept any responsibility for past abuses. In contrast to other countries where formal amnesties
have been established, the Guatemalan government has followed what might be called a policy of
‘tacit impunity” but it is interested in promoting human rights and reforms outlined in the peace
accords. At the same time, the government’s failure to move forward on any of the
recommendations of the Historical Clarification Commission is far more indicative of its real
stance. Past President Alvaro Arzu let the cat out of the bag in this regard when he simply asked
the Guatemalan people to grant forgiveness for the state’s “actions or omissions, for what we did
or what we didn’t do.”

South Africa: Mixed Memory and Punishment Model4

South Africa is perhaps the best example of a fourth paradigm that we can term “the mixed
memory and punishment model.” In this instance, there is a combination of truth telling as well as
(potential) prosecution of selected individuals involved in past abuses. Blanket or general
amnesties to members of political, military or security organizations are specifically eschewed.

4
Githongo, J. ‘International Models of Transition Justice’ Dealing With The Past: Economic Crimes And The
Transition Public Forum organised by Transparency International Kenya (TI-Kenya) and the
Law Society of Kenya (LSK), Nairobi, August 1, 2002, p14.
5
The standard for pursuing such prosecutions as are undertaken often revolve around the abusers’
willingness to admit their crimes and in the process plead for an individual grant of amnesty.
Failure to do so lays the person open to criminal procedures. The central ethical dilemma in this
scenario is, of course, whether even those who are guilty of particularly brutal crimes should be
allowed to go free simply because they offer a potentially hypocritical and false contrition for
past wrongs.

In April 1994, the Promotion of National Unity and Reconciliation Act was passed establishing
the Truth and Reconciliation Commission (TRC). Headed by Nobel laureate Bishop Desmond
Tutu, the Commission was eventually given leave to examine all putative cases of human rights
violations committed during the period from March 1, 1960 through May 10, 1994 (the date of
Nelson Mandela’s inauguration as South African President). The TRC was composed of three
separate committees, one dealing with human rights violations, another with amnesty, and a final
one concerned with reparations and rehabilitation. The committee on amnesty came to be the
focal point of public attention with respect to the TRC, since it was authorised to consider
amnesty for those who committed abuses “associated with political objectives.” Essentially this
meant that the individual involved had to be a member of an acknowledged public institution
(such as the security forces) or a recognised liberation group (such as the African National
Congress). The acts in question had to have been committed in furtherance of the person’s
“official” duties and not for essentially private or arbitrary reasons.

The amnesty provisions in the TRC’s charter represented, essentially, a compromise between the
demands of the old regime for a blanket amnesty for all those charged with human rights abuses
and the equally strong insistence of many in the anti-Apartheid movement that just punishment
had to be meted out. The decision to proceed on a course that represented a middle ground
between “Nuremberg and Amnesia” was dictated by the fact that the transition to the new South
Africa was the result of a negotiated settlement between the old regime and the liberation forces.
Without the possibility of at least selected amnesties for past crimes, it is virtually certain that the
government of President F. W. de Klerk would simply have refused to proceed with the
dismantling of Apartheid and to allow the African National Congress to come into power. In the
event, fears that the TRC would be unduly generous in forgiving the crimes of the past proved to
be exaggerated.

Aside from the issue of amnesty, the other main purpose of the TRC’s deliberations was to
establish an agreed-on historical record of the nature of the human rights abuses committed

6
during the Apartheid period in South Africa, and in so doing promote a process of healing
between whites and blacks. The assumption here was that given an acceptance of responsibility
and an admission of guilt on the part of those involved in various crimes, the process of
forgiveness and ultimately reconciliation would be significantly advanced. One striking aspect of
the TRC’s final report in this regard was the way in which it addressed not just the iniquities of
the pro-Apartheid forces but of the liberation movement as well.

The report detailed actions of the African National Congress as well as the Zulu-based Inkatha
organisation that involved attacks on civilian targets, killing of suspected informers, often by the
dreaded “necklace” method (a car tire placed around the victim’s neck filled with gasoline and set
alight), and other abuses. This attempt at evenhandedness outraged many in the ANC, including
current South African President Thabo Mbeki, who denounced the TRC’s findings as
“inaccurate” and contrary to international law. It was further suggested that whatever abuses the
liberation forces had committed were “unauthorised” or the result of poor communication with
forces in the field. Interestingly enough, however, Nelson Mandela supported the TRC’s position:
“The ANC was fighting a just war, but in the course of the fighting the just war, it committed
gross violations of human rights.” Nevertheless, as it were, President de Klerk himself was able
to persuade a court to black out a part of the final TRC report that implicated him in human rights
abuses.

Uruguay and Argentina: Blanket Amnesty After Truth Telling5

In this model, there is a fairly widespread discussion of past human rights violations was
followed by a decision to grant full amnesty both to the agents of the previous regime and to its
opponents. The conscious attempt to address the crimes of the past included an extensive study
by a private Uruguayan human rights group. In the end, however, calls for retribution were set
aside and impunity embraced. What was particularly interesting in this instance was that the
Uruguayan amnesty was not just a regime decision, but was actually approved in a national
referendum by a free vote of the Uruguayan people.

In Argentina, the fall of the military junta in 1983 provides yet another paradigm of transitional
justice, combining as it did a government-sponsored truth commission, an early series of
prosecutions of top junta leaders, but eventually under the so-called “full- stop” law, a grant of
immunity to all those who had not yet been subject to legal action.

5
Githongo, J. ‘International Models of Transition Justice’ Dealing With The Past: Economic Crimes And The
Transition Public Forum organised by Transparency International Kenya (TI-Kenya) and the
Law Society of Kenya (LSK), Nairobi, August 1, 2002, p15.
7
Kenya: A Case for a Truth and Reconciliation Commission
At its core, transitional justice might be said to be concerned, above all, with the politics and
principles of memory. For a departing regime and for its counterpart incoming regime, minds
are concentrated on the essential questions of what to remember of the past, how to define the
past, what to “do” about the past, and how may (or will) all these matters affect both the
present and the future of society?
Transitional justice basically serves to help seek:
• Absolution for the outgoing regime,
• Legitimacy for the incoming regime, and
• Resolutions for the citizens to the questions of past issues.

Currently, in Kenya, the social sense of justice is offended at the moment as a result of the
events that followed the December 2007 General Elections where violence broke out as a
result of flawed and questionable presidential election results. The violence took ethnic
dimensions in the form of systematic persecution of people perceived to be sympathizers and
apologists of the declared election winners who were widely believed to have rigged
themselves back to power. The violence was mostly between struggling civilian masses in
slums and low cost neighbourhoods in urban areas and rural areas in the North Rift region.
For the masses at the bottom directly affected by the post-election melee, it is extremely
painful and they cry for relief and justice. For the people at the top, the ruling elite especially,
they have lost their sense of responsibility, a sense of caring, a national brother and sisterhood
that is above tribe, clan and religion.

There is thus a need to remove the sense of grievance about the past by demonstration of
commitment in dealing with such grievances. Injustices committed in the past cannot be
removed from society’s consciousness until that society takes action to rectify past wrongs. It
must be seen that justice is done without fear or favour, but more than that, that such justice is
also tempered by mercy.
Transitional justice mechanisms to be set up must satisfy two conflicting national needs:
• First, there must be the appearance that justice applies to all and is done where it is
due, and

8
 • Second, there must as far as possible be insulation of people in authority from
humiliation and vindictiveness once they have left office. The reality of the transition
beckons with all its risks, threats and opportunities.

Thus in Kenya it is clear that the need for a transitional justice mechanism to examine and
articulate the deleterious effects of our past by addressing the fundamental political economy
circumstances in which obscene economic and resource distribution disparities and a culture
of impunity flourished and the resultant negative ethnicity and tribal animosity, cannot be
overemphasized.
Truth and reconciliation commissions have become the most popular transitional justice
mechanisms because they confront the difficult legacy of past human rights abuse through
efforts to promote reconciliation and justice.
This being a transition time from a period of widespread violence to that of national
reconciliation and healing the establishment of a truth and reconciliation commission would
come in handy for the healing process.

Such truth and reconciliation commission should lead the entire nation to approach the
subject of inquiry from the purview that reconciliation is a process and that national healing
is only possible upon the realization that6:
1. The Process of Reconciliation Begins with Acknowledging the Opponent’s Permanency
The meaning of this is that any solution must be inclusive even of those who have been most
instrumental in the past evils. They cannot be wished away so they must be included. At the
end of the day we are all Kenyans who have to live together in this country. No one is going
anywhere and no one is being chased away. This is a fundamental principle.

2. The Process of Reconciliation Requires a Mature Understanding of Evil

In any struggle, the enemy or those forces collectively perceived as such become demonized
and there is a tendency to find the locus of evil in personalities. In Kenya, when people talk
of serious economic crimes or human rights abuses, the names of a few powerful individuals
pop up again and again. Yet, often the real enemies are bad laws and dysfunctional
institutions for example.

6
Musyimi, M. ‘Dealing with the Past: The Challenge of Transition’ Dealing With The Past: Economic Crimes
And The Transition Public Forum organised by Transparency International Kenya (TI-Kenya) and the
Law Society of Kenya (LSK), Nairobi, August 1, 2002, p30.
9
Reconciliation is very difficult until we detach the evil of the system from the names of its
servants. St Paul has an important insight when he says: “Our fight is not against human foes,
but against cosmic powers, against the authorities and potentates of this dark world, against
the superhuman forces of evil in the heavens” (Ephesians 6:12).

3. The Process of Reconciliation Requires that One Recognizes the Wolf Within
I cannot reconcile with the enemy unless I acknowledge that I am capable of what the enemy
has done. One of the laws of human nature is that we become what we hate.

4. The Process of Reconciliation Requires an Understanding of How People Change

Quite simply, we must choose between two propositions: either people change because they
seek to earn forgiveness and acceptance, or because people discover themselves forgiven and
accepted, they become free to change.

Values of the commission

It is therefore in the backdrop of this realization that the proposed truth commission will then
derive the values for the commission to include the following principles mainly:
• That sin must be atoned for and impunity must not be cordoned thus a
measure of retribution is a necessary part of the national reconciliation;
• That forgiveness comes with confession and the truth will set you free thus
injustices committed by any perpetrator have to be publicly acknowledged
and genuine contrition expressed through a public apology;
• That those properties from unjust enrichment must be recovered thus
possible illicit gains made as a result of the post election violence i.e.
illegal occupation of private property must cease;
• That justice and the rule of law should however be tempered by a touch of
mercy.

Goals of the Commission

Typically, in pursuit of reconciliation, truth commissions will usually strive to investigate past
human rights abuses; to provide an official forum where victims and perpetrators alike can
tell their stories and offer evidence; and to prepare an authoritative report that documents the
events, makes conclusions, and suggests ways in which similar atrocities can be avoided in
the future. In this case therefore, a strong mandate is necessary in order to access sensitive
10
files, subpoena powerful political figures, and to protect truth commission members during
the inquiry. The mandate must also properly define the truth commission’s scope, and allow
inquiries into the relevant time period, areas, and acts to be investigated7.
It is therefore in this backdrop that the proposed truth and reconciliation commission should
among other things include the following as its primary goals:
• Make an open acknowledgement of the continuing power of ethnic identity in Kenya,
and
• Determine the extent to which it drives economic, political and social decision
making,
• Make a determined effort to define and address Kenya’s regional and ethnic
inequalities, particularly the economic ones, and to recommend clearly articulated
mechanisms to deal with these, such as affirmative action policies,
• Facilitate the creation of a mechanism for dealing with the past injustices and issues
such as land and the attendant land policies.

Objectives of the commission

To achieve the abovementioned goals, the proposed truth and reconciliation commission
would need to take some tentative steps towards developing home grown solutions guided by
the following objectives mainly:
• Firstly getting access to all available information of all instances of alleged impunity,
abuse of office and alleged injustices,
• Endeavour to arbitrate between the alleged perpetrators and the victims to see what
compromises can be made,
• To determine what forms of wrongs and crimes can be forgiven or to create categories
of what can and cannot be forgiven,
• To determine whether any immunity should be considered for the perpetrators
including those currently serving as senior government officials,
• To deliberate on the principle of compensation and reparations for the victims and
who pays it - is it the state or the perpetrators?
• To trace and recover assets illegally acquired during the post election chaos as part of
the reconciliation efforts,

7
Weissbrodt, D.(2005) Truth and Reconciliation Commissions, University of Minnesota Law School, p1.

11
 • To determine the cutoff date for the inquiries i.e. how far back should the inquiry be
undertaken - is it from, colonial days to today, or from1963 to today?

Functions of the commission

For the commission to discharge its mandate effectively, it would have to be empowered to
include the following among its functions thus:

1. The commission should have the power to require any person to appear before it and
completely submit to its instructions or be held in contempt and jailed.

2. It ought to be empowered to facilitate, and, where necessary, initiate or coordinate

inquiries into:
• Gross violations of human rights and crimes against humanity, including
whether such violations were spontaneous or part of a systematic nature;
the nature, causes, and extent of such violations of human rights and
crimes against humanity, including the antecedents, circumstances, factors,
context, motives and perspectives that led to the violations;
• The identity of all persons, authorities, institutions, and organizations
involved in such violations; and establish whether the violations were the
result of deliberate planning on the part of, any political organization,
official, or individual as well as the state or any of its organs.

3. The truth commission should establish accountability - political, moral, and legal - for
the violations.

4. Facilitate, initiate, gather, and coordinate the collection of information and evidence
from any person, including victims, which establish the identity of the victims of such
violations, and their perpetrators; establish the fate and status of victims, and the
extent of harm, suffering, or loss incurred by them.

5. Determine what compensation, reparations, and restitution should be awarded to

victims, their families, and survivors; recommendations for reparations to be given to
the victims, could take the form of cash payments, pensions, free access to health care
and psychiatric treatment, or public memorials and national remembrance days. Due
12
 to governmental resource constraints, however, amounts for the compensation may
have to be determined by the state.

6. Recommend the dismissal and barring from public service or politics of particular
perpetrators; recommend the seizure, forfeiture, and surrender of properties and
premises unjustly acquired and/or occupied during the post election violence i.e.
unjust enrichment.

7. Make referrals to the Ministry of Justice and Constitutional Affairs or the Attorney
General on the perpetrators to be prosecuted and sanctioned.

8. Additionally, the Commission should be given authority to recommend if a limited

number of amnesties with qualified immunity ought to be granted to further the ends
of its mandate.

9. It is also important that the proceedings of the Truth Commission be carried live on
radio and television countrywide.

Structure of the Commission

The proposed Truth and Reconciliation Commission should be established by an Act of a
democratically elected parliament. Secondly, its structure should include and promote
significant international and national consultation and extensive public debate in the opinion
forming institutions of the country8.
In short, the structure of the proposed Truth and Reconciliation Commission should be a
bottom up process with a broad participatory structure from the community level to the
national level.

National level
At the national level the proposed Truth and Reconciliation Commission be composed of:
• The Amnesty Committee

8
Winston, P. ‘Transitional Justice: The Moral Foundations Of Trials And Commissions In Social And Political
Transformation’, International Symposium: Justice In Transition – Prosecution And Amnesty In Germany And
South Africa, Humboldt-Universitat Zu Berlin, April 6-9, 2005, p24.

13
 • The Truth and Inquiry Committee
• The Reparations Committee
• The Commission Support Centre

The Amnesty Committee

The Amnesty Committee is the committee responsible for determining qualification for
granting amnesty to a perpetrator and the type of amnesty to be granted, whether:
• Blanket amnesty, or
• Conditional amnesty
In discharging its mandate the committee is vested with the power to hear the application for
amnesty from the applicant perpetrators in a public hearing. In this case the perpetrator
seeking amnesty will be expected to give a public apology and acknowledgement of the
actions for which he seeks amnesty in the form of a candid confession of the circumstances
and particulars of his involvement in the matters forming the subject of the amnesty
application.
An application for amnesty presupposes guilt on the applicant for the crime for which
amnesty is so sought.
An application for amnesty may be made before the applicant testifies in the Truth and
Inquiry Committee but such application may be considered only after the witness has
appeared before the truth committee for a truthful account of the events in the matters before
the commission which will then be followed by a public apology as a demonstration of his
remorsefulness and reformation before the Amnesty Committee.

The Truth and Inquiry Committee

This is the committee responsible for diagnosing and developing an accurate historical
account of the past events that are under inquiry which diagnosis is based on a rigorous
examination of the causes, nature and effect of the issues in question.
In making their diagnosis the committee is empowered to gather extensive evidence from
thousands of different sources including witness statements, documentary and real evidence
as well as examine the social, structural and institutional causes of the conflict and human
rights abuse so as to clarify not only what happened in individual cases but also the broader
context which enabled the violations to occur.

14
The committee will then generate a comprehensive account of human rights abuse during the
period in review and make comprehensive, detailed and informed recommendations as to
measures that can be taken to deal with these root causes or reduce the capacity of the
diagnosed factors to perpetuate conflict.
Such recommendations will include remarks as to the truthfulness of the witnesses, both the
perpetrators and the victims and a statement as to the operations of the committee generally.
The role of the committee is however not to extract confessions from perpetrators but rather
an effort to reconstruct and clarify the past events as part of the heritage of the Kenyan
society for which the Kenyans seeks to declare unequivocally before a multitude of witnesses
locally and abroad;
‘Lest we forget, NEVER AGAIN!’

The Reparations Committee

This is the committee responsible for looking into the issue of reparations for the victims of
the human rights violations including the political and economic crimes committed in the
period under review.
The Reparation Committee will have to differentiate between different categories of victims
and amongst victims in each category including for instance:
• victims of gross violations of human rights such as torture, killings and
disappearances, who form the priority class of victims, and
• The broader class of victims, for example those who have suffered systematic ethnic
injustices or who have lost land or other property.
The committee will then determine the different forms and quantities of reparation to the
different classes of victims who have experienced different types and degrees of torture
including the means of testing to differentiate between wealthy and poor victims.
Each decision must however, be justified on significant moral, political and financial
implications based on the definition of victimhood i.e. the reparation policy should neither
create nor perpetuate divisions amongst different categories of victims, and as well should be
feasible and financially realistic.

The Commission Support Centre

This is the investigation and research unit of the commission whose role is aid the
commission in interpreting scientific data as well as conducting forensic investigations and
scientific analysis to for instance reconstruct the past where concrete evidence may be
15
lacking as well as scientifically test and analyze the evidence adduced for cogency and
contextual understanding and interpretation.
The investigation unit will be staffed with forensic experts with support law enforcement
personnel while the research unit will be staffed with statisticians for instance, and will work
closely with non-governmental organizations, civil society organizations and various relevant
think-tanks in using scientific methods to aid the commission discharge its mandate
accordingly.

Community Level
The recent post election skirmishes were widespread with the perpetrators being civilians
who were meting violence on their fellow civilians including for instance neighbours against
fellow neighbours and generally the violence involved community members who had
previously co-existed harmoniously.
Most victims of the post election violence were evicted and ejected from their residences and
violence meted against them by their fellow members of the community in which they lived
in.This therefore being the case there requires reconciliation mechanisms at the community
level in the affected areas.

The Mediation Baraza

This committee is mandated with aiding and effecting the reintegration of the victims of
evictions back into their neighbourhoods and the reconciliation of all members of the affected
neighbourhood thus the healing process.
In discharging its duties it is composed of eminent members of the affected community from
both sides of the divide of the warring parties and a public official, for instance the district
officer to act as a mediator.
The mediator lays down the rules of procedure to be followed in the proceedings which
proceedings are by public hearings where in the spirit of reconciliation victims and
perpetrators alike are invited to give an account of the events in issue as part of a truth
seeking effort with the primary focus being dispute resolution.
In this regard, the mediator seeks to drive at a compromise where the factions reach an
amicable settlement that will pacify the victim’s sense of entitlement without fragmenting
that particular society any further.

Wrongs to be addressed

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The barazas may thus aid in recovery of the property of the victim including for instance
having illegal occupiers of the property surrender such property so the owner who had been
evicted may settle back at his abode.
The barazas may however, not adjudicate in cases of crimes against humanity and genocide
which should be referred to the courts.
In the process of reaching a compromise and/or a settlement the community level mediation
baraza may actually be able to determine and pass sentences as such it should be amenable to
regulatory oversight to ensure professionalism including regard for natural justice and the
doctrine of proportionality. Such oversight may be through judicial review where decisions of
the decisions of the barazas will be reviewed and set aside if they are ultra vires.
To avoid a gridlock due to mass appeals and resultant declaration of decision as ultra vires the
following steps must be taken before establishing the barazas9:
• The enabling statute should be phrased in a manner as to focus on the restorative
potential, i.e. seeking truth, order, and cooperation in a shattered society, with
retribution against the accused simply being incidental to the process.
• There should be a greater focus on controls at every level of the system, with great
emphasis on the right of the accused or aggrieved party to a judicial review of the
decision of the baraza.
• The members of the baraza especially the mediator should receive adequate training
in respect to dispute resolution, dispute resolution mechanisms as well as legal
principles.
• There should be workable mechanisms for monitoring at the community level that
allow the public, local, and international nongovernmental organizations to attend
trials as observers.
• The observers should reserve the right to comment on trials.
• The barazas should keep records of the trials by which a proper system of judicial
review can function.

9
Hornbergera, K. ‘Rwandan Gacaca Courts in Crisis: Is There a Case for Judicial Review?’ Africa Policy
Journal, Spring 2007, Vol. 3, p22.

17
Remedies
The process of reconciliation can not be complete unless and until it includes some form of
coming to terms with the past, emotional response, and memory and remembering, in both its
emotional and physical manifestations for the victims. In the case of Kenya, this can be
realistically envisioned only in the form of:
• resettlement of the internally displaced people,
• some measure of retribution for the perpetrators especially those accused of crimes
against humanity and genocide, and
• through reparations for the victims of human rights violations from political and
economic crimes committed in the period under review.

Resettlement of Internally Displaced People

This is a priority issue which should be undertaken thus:
• Identifying victims whose houses were burnt down during the post election violence
and putting up appropriate abodes according to the assessed specific need basis of the
victim such that the goal should be to indemnify and not to benefit the victim.
• Identifying victims who were forcibly evicted from the houses during the post
election violence but which houses were not destroyed but are being illegally
occupied and endeavour to recover the property
• Identifying victims who were forcibly evicted from the houses during the post
election violence but which houses though not destroyed are not conducive for
habitation i.e. were partially destroyed and compensate them for the damage on the
principle of indemnity.
• Identifying victims who have been systematically displaced over and over again as a
result of state evictions or other politically motivated evictions prior to the post
election violence and establish a settlement scheme for them.

Retribution of perpetrators of crimes against humanity and genocide

Though the goal of establishing a truth and reconciliation commission is to foster
reconciliation and thus restorative justice one can not fail to underscore the need to deal
decisively with the culture of impunity. As such, though amnesty may be granted for certain
classes of offences and cadres of offenders, crimes against humanity and genocide must be
prosecuted and the culprits made to face the music.

18
In this regard, all persons accused of masterminding, bankrolling or actively participating in
murders, massacres and disappearances of persons should be made to face a grand jury and
plead his case before being sentenced accordingly.
This does not however, include low-level offenders who were manipulated, coerced and
influenced as a result of politically motivated factors which manipulation if relied upon as a
basis for amnesty, then should be put to a spelled out test of medical acceptability to be met.

Reparations
Reparation serves a remedial purpose in its twin effects of being punitive and thus retributive
when the duty to meet its demands is imposed against the perpetrator and restitutive on the
part of the victim who gets a fresh start in life as its beneficiary thus:
1. It is a symbolic acknowledgement of the victim’s loss suffered in the ordeal
and an effort to make amends by the society. This may be in the form of:-
Symbolic measures:
• monuments,
• memorials and
• National days of remembrance.

2 It is also conscious and concerted effort to indemnify the victim following the
loss suffered in the ordeal in question which includes10:-
Material assistance,
Psychological assistance.

Demobilisation, disarmament and reintegration programmes

This is an innovative approach to promoting the reintegration of low-level perpetrators by
allowing them to come forward, disclose their crimes and agree to undertake an act of
reconciliation (which often includes community service) as a precondition to escaping
liability for their crimes. By promoting reintegration, these does not only reduce the
likelihood of conflict, it is also saves the state the expense and effort of having to prosecute
and imprison thousands of low-level offenders. Instead, these individuals are able to remain

10
Gibney, M., ‘When Sorry Isn’t Enough: The Controversy Over Apologies and Reparations for Human
Injustice’, Human Rights Quarterly (2001), p. 1.
Material assistance being: compensation payments, pensions, bursaries and scholarships
Psychological assistance being: trauma counseling including, free access to healthcare.
19
in their communities and continue to be economically active, and in some cases, are able to
help to repair the damage they were responsible for11.
This DDR programme is explicitly limited to low-level perpetrators – persons responsible for
serious crimes such as murder or rape are still liable for prosecution. In this way a balance is
struck between encouraging the reintegration of individuals responsible for certain offences
and achieving accountability for those bearing the greatest responsibility.
In these instances, former combatants (a percentage of whom may be responsible for human
rights abuse) are offered substantially generous demobilization packages12.
For example, the DDR programmes could offer skills training programmes designed to
facilitate the entry into certain kinds of self employment as a long term initiative as well as
provide cheap semi-skilled labour for various reconstruction efforts by the government
including for instance rebuilding of infrastructure destroyed during the violence and
resettlement housing schemes for the displaced people in the mean time which could also
serve as retributive community service for some of the offenders as shall be determined by
the Mediation Barazas.
The training on entrepreneurial skills should be complemented with start up capital funding
coupled with regular follow-up missions for economic undertakings by the reformed former
combatants. On this point the government could seek the help of organizations such as the
World Bank through the IFC, the World Bank SME financing unit.
Such programmes should have as a compulsory entry qualification, the complete submission
to a full and thorough assessment to determine the level of involvement of the combatant in
the post election melee by the barazas in which case qualification is dependent on the
truthfulness and remorsefulness of the combatant as perceived by the baraza coupled with a
full disclosure and surrender of any arsenals including for instance bow and arrows and any
spoils that may be in his possessions followed by regular progression assessments by the
local D.O.’s office of the former combatant.

Conclusion

11
Young, G.K., ‘Amnesty and Accountability’, U.C. Davis Law Review (January, 2002), pp. 427-482.
12
Smith, C., op. cit.; Burgess, P. ‘Justice and Reconciliation in East Timor. The Relationship between the
Commission for Reception, Truth and Reconciliation and the Courts’, Criminal Law Forum vol. 15, no. 1/2
(2004),pp. 135-58.
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Above all the establishment of the truth and reconciliation commission, the process of
discharging its duties and the release of its findings as a result of the culmination of its work
should give the public the assurance that:
• The right to own property will be protected and respected.
• Peace and security will henceforth be maintained before, during and after the
elections.
• Impartiality and integrity during elections, both parliamentary and presidential, will
be observed in the future.

21
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Africa Policy Journal, spring 2007, Vol. 3

Criminal Law Forum vol. 15, no. 1/2 (2004)

Dealing with The Past: Economic Crimes and the Transition Public Forum organised by
Transparency International Kenya (TI-Kenya) and the Law Society of Kenya (LSK), Nairobi,
August 1, 2002

Human Rights Quarterly (2001)

Weissbrodt, D. (2005) Truth and Reconciliation Commissions, University of Minnesota Law

School

Winston, P. ‘Transitional Justice: The Moral Foundations of Trials and Commissions in

Social and Political
Transformation’, International Symposium: Justice in Transition – Prosecution
and Amnesty in Germany and South Africa, Humboldt-Universitat Zu Berlin,
April 6-9, 2005

U.C. Davis Law Review (January, 2002)

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