Kenya

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ICTJ began its work in Kenya in 2008. It formally launched its program in January 2009 with a focus on continuing advocacy on the Special Tribunal Bill, monitoring of the TJRC, and providing support and technical assistance to civil society groups on issues of truth-seeking, prosecutions, and institutional reform.

Background

The December 2007 presidential and parliamentary elections in Kenya were followed by communal violence and political unrest that resulted in 1,100 deaths and widespread displacement. In late January 2008 the opposing political parties, the Party of National Unity (PNU) headed by incumbent Mwai Kibaki, and the Orange Democratic Movement (ODM), led by Raila Odinga, agreed to a round of negotiations. Brokered by the African Union's Panel of Eminent African Personalities, chaired by former UN Secretary-General Kofi Annan, the negotiations produced a power-sharing agreement between the two political parties and terms for the formation of a grand coalition government.

The accord led to the cessation of most of the hostilities and called for the establishment of a Commission of Inquiry on Post-election Violence (CIPEV, or Waki Commission) and an Independent Review of the Elections Commission (IREC) to investigate all aspects of the 2007 elections. The Waki Commission and IREC completed their work in September and October 2008, respectively, and the country embarked on its reform process in accordance with the framework agreed upon in the negotiations and the recommendations of the two commissions. These recommendations included:

Overhaul of the Electoral Commission of Kenya, with a mandate to create a new voters register and organize a referendum on a new constitution;
The formation of a Special Tribunal comprised of Kenyan and international judges to prosecute perpetrators of post election violence;
The creation of a Truth, Justice and Reconciliation Commission (TJRC) to investigate past human rights violations, corruption, and economic crimes dating back to independence in 1963;
The completion of the constitutional review process which has been ongoing since the early 1990’s;
Security sector reform.

As of early 2010, most of these recommendations have begun to be implemented. Parliament defeated the bill calling for the creation of a special tribunal in February 2009; on March 31, 2010, the ICC announced it would launch an investigation into the post-election violence.

ICTJ Activity

ICTJ's work in Kenya has focused on three key areas: truth-seeking, prosecutions, and institutional reform. Local partners include the Kenya National Commission for Human Rights (KNCHR), Kenya Human Rights Commission (KHRC) the International Center for Policy and Conflict, the Kenya Section of the International Commission of Jurists and Kenyans for Peace Truth and Justice (KPTJ).

Truth-Seeking

ICTJ undertook several assessment missions to Kenya in 2008, identifying opportunities for truth-seeking and assisting Kenyan civil society as it successfully lobbied for amendments to the amnesty provisions in the bill establishing the TJRC.

ICTJ’s truth-seeking efforts in Kenya have several concrete objectives:

Enhance civil society and public knowledge on transitional justice.
Limit grants of amnesty for apolitical crimes. While Kenya's TJRC bill prohibits amnesty for gross violations of human rights, it allows amnesty for crimes committed for personal gain. ICTJ will support civil society monitoring of the commission and engage the Commissioners to limit the number of amnesty grants for corruption and other non-political crimes.
Assist commissioners and staff with statement-taking, investigation, due process, the sensitive treatment of victims, and attention to gender-based violations.
Encourage the Attorney General to implement the amnesty and prosecution recommendations of the TJRC.

ICTJ took part in the induction workshop for the TJRC commissioners which took place in September 2009, and has organized workshops for civil society organizations, the media and religious leaders on their respective roles in Kenya’s truth seeking process.

Since its formation in August 2009, the TJRC has faced a credibility crisis over allegations of previous misconduct by its Chairperson, Ambassador Bethuel Kiplagat. Civil society groups and organizations including ICTJ have called for his resignation.

Prosecutions

The Waki Commission Report, released on October 15, 2008, recommended against amnesty for all but "minor offenders" and called for the establishment of a Special Tribunal to try "those bearing the greatest responsibility," for the post-election violence. After releasing the report, the Commission delivered a list of perpetrators to Kofi Annan, and stipulated that if the agreement establishing a Special Tribunal was not signed within 60 days, the list would be forwarded to the ICC.

President Kibaki and Prime Minister Odinga signed on December 17, 2008 an agreement to establish the Special Tribunal, but the bill was defeated in Parliament in February 2009. ICTJ continues to support local efforts to secure passage of the bill.

In the meantime, the list of alleged perpetrators was forwarded to the ICC July 9, 2009 and the Prosecutor Luis Moreno-Ocampo formally requested authorization from the court to open an investigation into post-election crimes. The ICC gave the green light to the Prosecutor on March 31, 2010 to investigate 20 government and business officials named on the list.

ICTJ welcomes ICC involvement in Kenya and supports the work of the Court by providing practical advice to the office of the prosecutor and raising local awareness through outreach and workshops on the ICC’s purpose and operations.

Institutional Reform

The Waki Commission Report proposed extensive reform of the Kenyan police force, recommending the creation of police accountability mechanisms and that Kenya's two police forces—the Administration Police and the Kenya Police Service—be merged. Police reforms began in December 2009 to be implemented within four years, focusing on the creation of an independent police oversight authority to enhance police accountability and provide a channel for public complaints against the police.

ICTJ is monitoring the implementation of the reform process and supporting local organizations' advocacy efforts on police reform. ICTJ has facilitated informational workshops and published briefing papers targeting key government departments, civil society and other security sector stakeholders. Future support for institutional reform may extend to land reform initiatives and to the constitutional reform process now underway.

(Updated May 2010)

Kenya Resources