ICTJ in the News

October 28, 2008

Kenya's Truth Commission: What is wisdom?

Radio Netherlands Worldwide

By Daan Bronckhorst

It is going to deal with manifold manifestations of violence. It will comprise nine commissioners, including three foreign experts. It is set to end a culture of impunity since 1963. The Truth, Justice & Reconciliation Commission (TJRC), approved by Kenya's Parliament on 24 October, is at the least ambitious.
Yet it is the outcome of a compromise. Two recent investigative reports threatened to disclose, and denounce, some of the dirtiest secrets of Kenyan politics. In one report, a South African judge issued a devastating verdict on fraud committed during the December 2007 presidential elections.

In the other report, over 500 pages long, domestic judge Philip Waki didn't shy away from naming the culprits, although with a timer device: a closed 'envelop' containing what should be dozens of names was handed to Kofi Annan, with the provision that in two months it shall be passed on to the International Criminal Court if the government has not brought the accused to book.

Violence
In last year's violence, some 1.500 people were killed or 'disappeared', the police shot an estimated one third of that number, government-sponsored thugs instructed the death squads. But some prominent politicians involved have nonetheless expressed their support for a tribunal. They apparently expect the outcome to be of no clear and present danger. So should a truth commission bring the non-judicial truth that may not be a politically feasible achievement of a tribunal?

The TJRC was heavily consulted upon by the International Center for Transitional Justice, an NGO that employs both former truth commissioners from other countries and foremost experts in the field. And Kenyan civil groups have promoted commission proposals for years. But the TJRC has quite a few weak spots. Will it end impunity, given its considerable powers of amnesty? Will it be independent, given its budget approved by the Ministry of Justice? Will it make a difference, given so much that was documented by previous reports and never acted upon?

Politics of truth
Truth commissions have, since their inception in Argentina in the mid-1980s, been initiated or proposed in over forty countries. In no more than a dozen, they have been a (partial) success. Elsewhere, they were thwarted by politics, or proved to be a political cover-up in origin.
Setting up such a truth commission may be wise. But the Kenyan commission has much to lower expectations of effectiveness: its mandate is wieldy, its legal position wobbly, its political back-up whimsy. Scrutinising its actual proceedings with a fair dose of scepticism, therefore, is even wiser.

"Kenya's Truth Commission: What is wisdom?" originally appeared in Radio Netherlands Worldwide.