CONCEPTUALIZING A TRUTH, JUSTICE AND RECONCILIATION

PROCESS IN KENYA

By Nyamori Victor∗

CHAPTER ONE

INTRODUCTION

This chapter begins by exploring the meaning of the term ‘transitional justice’. It digs

deeper to understand the different legal definition of the concept of transitional justice

and analyze the effort by different scholars to demystify the meaning. It diagnoses the

different mechanisms that have been adopted around the world to achieve the objects of

transitional justice. Further, this chapter introduces the meaning and nature of truth

commissions as model of transitional justice and looks at the reasons behind the

recommendations of the formation of truth commission in Kenya. Finally this chapter

briefly discus some of the developments that have been made in regard to the formation

of the said commissions

1.0 TRANSITIONAL JUSTICE

Transitional justice refers to the to the view of justice associated with periods of political

change as evidenced by primarily legal response that deals with the wrong doing of

repressive predecessor regimes. In the wave of post war and political fragmentation, the

phenomenon of transitional justice has accelerated and appears to have become a


The Author a former student of Moi University School of Law where he perused his Degree in Law. This
research is a draft copy of his final year thesis presented to: Moi Univesity, School of law in partial
fulfillment of the requirements for the degree of bachelor of law. The immense help of my supervisor
MR.Oduor, Lecturer in School of Law was very fundamental for the development of this work. I am also
grateful for being able to be alive after the post elections violence and this work is dedicated to the youths
who in the fight for democracy lost there lives.

1
permanent feature of our political universe.1Transitional justice is further noted to be the

conception of justice associated with period of political change.

The former UN Secretary General, Kofi Annan gave a very well crafted definition of

transitional justice in a report on the rule of law and transitional justice:

The notion of ‘transitional justice’…comprises the full range of processes and

mechanisms associated with a society’s attempts to come to terms with a legacy of large-

scale past abuses, in order to ensure accountability, serve justice and achieve

reconciliation. These may include both judicial and non-judicial mechanisms, with

differing levels of international involvement (and none at all) and individual

prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a

combination thereof.2

Martin Logan further notes that transitional justice is a way to address the past human

rights violations and how people can move forward towards sustainable peace and

reconciliation.3 Transitional justice is a response to systematic or widespread violations of

human rights. It seeks recognition for the victims and to promote possibilities for peace,

reconciliation and democracy. It is the system of justice when a country moves from

autocratic rule to democracy or from armed conflict to peace.

Transitional justice processes have inspired a growing field of study. Legal scholars

tackle theoretical and ethical issues surrounding transitional justice norms, participants

and researchers have analyzed a number of transitional justice institutions, and a small
1
See Ruti Teitel “Theoretical and international framework: Transitional justice in New Era”
2
See The Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies,
Report of the Secretary-General, para. 8, U.N. Doc. S/2004/616 (Aug. 23, 2004).
3
See Marty Logan, “What is transitional justice” a paper presented in OHCHR Nepal 2007 available at
http//:www.nepal.ohchr.org/en/resources/Documents/English/pressreleases/APR2007/2007_04_12_HCR_I
nvestigate%20Commission_E.pdf
as at 13 October 2008

2
number of scholars have published comparative studies.4It is worthy to note that each

society has its unique economic, social, and political features of transitional periods

which legitimately demand a response to past human rights crimes hence they adopt

different methods of achieving their objectives. With this feature, one cannot say to have

a consensus over the method of transitional justice that can be adopted allover the world.

Approach to transitional justice emerged in the late 1980s and early 1990s, mainly in

response to political changes in Latin America and Eastern Europe and to demands in

these regions for justice. At the same time, human rights activists and others wanted to

address the systematic abuses by former regimes but without endangering the political

transformations that were underway. Since these changes were popularly called

“transitions to democracy,” people began calling this new multidisciplinary field

“transitional justice.”

1.2 MODELS OF TRANSITIONAL JUSTICE

There are some models of which transition justice use to achieve its specific objectives.

This is because some of the existing judicial and none judicial structures that are

available within a state are not able to fully address the issues. On that note, countries

have developed some specific models which are used to further the objective of transition

justice.

4
Lyn Graybill and Kimberly Lanegran. "Introduction to Special Issue on TRCs: Truth, Justice, and
Reconciliation in Africa: Issues and Cases" African Studies Quarterly 8, no.1: (2004) [online] URL:
<http://web.africa.ufl.edu/asq/v8/v8i1a1.htm> as at 7 November 2008

3
1.2.1 PROSECUTION

Prosecution is one model that countries use to prosecute perpetrator of such crimes. They

have the primary responsibility to carryout out trials for genocide, crimes against

humanity, war and other serious violation of human rights.5Apart from the international

tribunals and courts, domestic courts need to be exhausted extensively before setting the

matter to international courts. Domestic courts and prosecutions are judicial

investigations of those responsible for human rights violations. Prosecutors frequently

emphasize investigations of the “big fish” suspects considered most responsible for

massive or systematic crimes.

1.2.2 REPARATION

Persons who have undergone the dehumanizing experience of violation of some of the

basic human’s right have recourse for remedies and reparation. International Instruments

provide for reparation of victims of gross human right violations6.Reparation need not to
5
Some of the internationally acclaimed models of prosecution include the International Criminal Court
that was established in the Hegue (Netherlands) in 1998 to try persons for genocide, war crimes and
crimes against humanity committed after July 2002
6
.See the UN Basic Principles and Guidelines on the Right to Remedy and Reparation adopted and
proclaimed by UN General Assembly resolution 60/147 of 16 December 2005, UN Doc. A/RES/60/147.

The right to an effective remedy for victims of human rights violations is enshrined in article 2 (3) of the
International Covenant on Civil and Political Rights (ICCPR). It is also recognized in article 8 of the
Universal Declaration of Human Rights, article 6 of the International Convention on the Elimination of
All Forms of Racial Discrimination, article 14 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, article 39 of the Convention on the Rights of the Child,
article 3 of the 1907 Hague Convention concerning the Laws and Customs of War on Land, article 91 of
the Protocol I Additional to the Geneva Conventions of 12 August 1949 relating to the Protection of
Victims of International Armed Conflicts (Additional Protocol I), article 75 of the Rome Statute of the
International Criminal Court and article 7 of the African Charter on Human and Peoples’ Rights.

4
be in term of monetary value only, they can also include symbolic acts such as apologies,

recognition of the plight of the victims. Thus countries adopt integrated approach into

application of both the individual measure, managerial and symbolic measure.

Institutions that ware part of the past regimes which ware used to support the

authoritarian regimes and or were a contributed to the conflicts need to be changed too.

1.2.3 INSTITUTIONAL REFORM

The Institutional Reform as model for transitional justice cannot be gainsaid, as such, the

institutional reform program is aimed at changing the institutions to ones that respect

human rights, maintain peace and preserve the rule of law. It’s a pity that most truth

commissions around the world centre their focus on individuals but forget about the

institutional reforms. Institutions have in the past been used as tool for human’s right

violations. Some states have not been able to archive its basic objective of transition

because the institution remains the same.7

1.2.4 TRUTH COMMISSIONS

7
As Dr Alex Dr. Alex Boraine, President International Center for Transitional Justice , notes in paper
“Transitional Justice as an Emerging Field” presented at the “Repairing the Past: Reparations and
Transitions to Democracy” symposium Ottawa, Canada * March 11, 2004
“On a recent visit to Serbia, it was quite clear that one of the major problems that are preventing
that country from moving out from its very dark and ominous past into a brighter democracy was
that the institutions remained almost exactly the same. Neither the structures nor the personnel had
changed. As I moved from one group of leaders to another, it was clear that unless and until
institutions are radically restructured, there will be little opportunity for growth, for development
and for peace in Serbia. In deeply divided societies where mistrust and fear are characteristic of
that society, there must be bridge-building and a commitment, not only to criminal justice, but also
to economic justice. For that to be a reality, institutions, as well as individuals, have to change.”

5
One last but not the least models adopted by countries all over the word are the truth

seeking models. This model adopt the style and format of working as truth commissions

of which by definition refers to an officially sanctioned, temporary, non-judicial body

created to establish truth about large scale violation, including the responsibility of

individuals and institutions and the root cause of violation.

Henry Steiner in his article about the “Introduction to Truth Commission” he ably defines

in verbatim that:

..Truth commissions has become familiar conception and institution for a state emerging

from a period of gross human rights abuses and debating how to deal with its recent

past. The terms serve as generic designation of a type of governmental organ that is

intended to construct a record of this tragic history…..these commissions offer among

many ways of responding to years of barbarism run rampant, of horrific human rights

violations that occurred while countries ware caught up in racial, ethnic, class and

ideological conflict over justice and power…8

Guideline from Amnesty International titled “Truth, justice and reparation: Establishing

an effective truth commission”9 notes that Truth commission is an official, temporary,

non-judicial fact-finding bodies that investigate a pattern of abuses of human rights or

humanitarian law, usually committed over a number of years. The object of their inquiry

(a pattern of human rights violations, rather than a specific event) distinguishes truth

commissions from other commissions of inquiry. Their temporary character distinguishes

8
See Henry J Steiner and Philip Alston, The International Human Rights in Context, Law Politics
Morals,(2nd ed,2000) at page 1217
9
“Truth, justice and reparation: Establishing an effective truth commission “This article is available at
http://www.amnesty.org/en/library/info/POL30/009/2007 as at 20 October 2008.

6
truth commissions from many national human rights commissions and other national

institutions for the promotion and protection of human rights, which are permanent

monitoring and enforcement bodies. Truth commissions are established by national

authorities, generally during a political transition. They take a victim-centered approach

and conclude their work with a final report containing findings of fact and

recommendations. Its is also noted that A truth commission or truth and reconciliation

commission is a commission tasked with discovering and revealing past wrongdoing by a

government, in the hope of resolving conflict left over from the past10.

In principle, truth and reconciliation processes could be held that addressed conflicts and

abuses across borders, or in a regional context. In practice, official truth commissions,

mandated by governments, are designed to address crimes in a national context. This does

not mean that truth commissions and their reports cannot address regional dynamics.11

The contemporary surge of truth commissions in noted to have started in Argentina after

the country’s defeat in the Falkland Islands war and leaving of political power by the

military. In this regard, the functions of truth commissions have since the last few years

changed. In the past truth commissions ware understood to be investigative mechanism

with the aim of publishing an authoritative and factual report on humans rights violations

committed in the country.12The objects of inquiry of truth commissions distinguish it

10
This definition is found from the following link,
http://www.wikipedia.org/wiki/Truth_and_Reconciliation_Commission as at 10 October 2008.
11
See Chandra Lekha Sriram “Conflict Mediation And The ICC: Challenges And Options For Pursuing
Peace With Justice At The Regional Level” available at
http//www.peace-justice-conference.info/download/WS1-Sriram%20report.pdf as at 12 October 2008
12
See Dealing with the Past: Rights and Reason: Challenges for truth recovery in South Africa and
Northern Ireland. Fordham International Law Journal(Volume 26;1074)

7
from some commissions. Even if they are involved in the protection of human rights, this

characteristic is more fundamentally different from other national humans’ rights

commissions and other institutions that protect and promote national humans rights. This

is because their objects on inquiry deal with the establish pattern of humans rights

violations unlike other institution that deal specifically with one event. They take a

victim-centered approach and conclude their work with a final report containing findings

of fact and recommendations13.

Some of the distinctive features that truth commissions should have include the issue of

time frame. It is noted that truth commissions should have a time frame of operations lest

it take a whole century to come up with its report. This time frame would include time it

starts its operation by collecting and collating evidence from people and witness up to the

time it will submit its final report. The advantage from this in that truth commission can

start operations as soon as the panel or the commissioners are sworn in.14

Truth commissions’ mandates must fall within some realities. Thus s commissions

cannot be tasked with the duty of inquiry of some of the past humans right violations that

happened some irretraceable years back. Thus this will not be possible because some

sources of collating evidence will have demised by then.

13
See: The rule of law and transitional justice in conflict and post-conflict societies, report of the UN
Secretary-General, UN Doc. S/2004/616, 23 August 2004, para. 50.
14
It should be noted that some truth commissions over the past had taken time for conclusion of some of
their report. In Uganda fro example, the Commission of Inquiry into Violations of Human Rights was
created in mid-1986 to examine the abuses committed under the Obote and Amin governments from
1962-86, unfortunnaly the commissions chaired by Supreme Court judge dragged its work for nearly a
decade.

8
1.3 REASONS FOR TRUTH COMMISSIONS

Since its creation by the British in 1895, the Kenyan state has witnessed a great deal of

commissions of massive human rights violations.15The successive government that took

over from the colonialist engaged in the most abominable human rights violations and

economic crimes known to humanity. The two general elections in 1992 and 1997, the

first of their kind in decades did not bring relief from state-directed human rights

violations and the wanton and shameless theft of public coffers and property, evils that

became the trademark of the Kenya government.16

Election that culminated in the removal KANU regime from the long rule showed some

glimmer of hope to Kenyans. Some of the promises that the then incumbent Government

made to the people was the formation of Truth, Justice and Reconciliation Commission to

act as vehicle for transitional justice that would try to join back the social fiber that had

been broken for more than two decade of bad leadership and rule. The task force

appointed over the same made recommendations for the establishment of the

Commission and a bill is in parliament pending discussion and subsequent enactment into

law upon thorough securitization

The Post election violence that rocked this country was as result of some of the issues

that were raised by the task force for Truth Justice and Reconciliation Commission.

Emotive issues that had been ignored over the past ware some of the factors that

contributed to the violence after the flawed electoral process. The violence that marred

15
See “Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission”
Presented to Hon. Kiraitu Murungi The Minister for Justice and Constitutional Affairs on 26 August 2003
16
Ibid

9
every part of the country was based on some of the historical issues that had remained

unresolved by the past regimes despite constant urge from the citizens and the civil

society. In view of the foregoing ,the Panel of Eminent persons in trying to resolve the

conflict of the disputing sides mooted an agendas that would tackle the past historical

injustice and human mistreatments and irregular and emotive land issue ,this is was noted

to be the Agenda Four that formed part of the discussion of the National Dialogue and

Reconciliation.17

The Kenya National and Reconciliation Committee then agreed to the formation of Truth

Justice and Reconciliation Commission. This was to be done by passing of an Act of

Parliament which should be adopted by the legislatures. They agreed that the commission

mandate would tackle event that took place between 12th December in 1963 to 28th

February 2008.18Further they noted that it would be reasonable to look at antecedents of

this date to understand the nature, root cause, of context that led o the violence, violation

and the crimes.

The agreement further reiterated the guiding principles with reference to international

standards that shall cover the operation the truth commission. They noted that
17
The Kenya National Dialogue and Reconciliation commission mediated by Kofi Anan made a press
statement on 14 February 2008 with recommendations on how to resolve the political crisis. They noted
in Part III of the statement that in then current crisis, the need for political settlement was need to
promote national healing and reconciliation. That political settlement was necessary to manage wide
spectrum of reform mechanism which included but not limited to the following:
• Comprehensive constitutional reforms.
• Comprehensive electoral reform
• Truth justice and reconciliation commission
• Etc.
18
See the post Koffi Annan agreement for the formations of Truth, Justice and Reconciliation Commission
signed on 4th March 2008 available at:http://rescuekenya.files.wordpress.com/2008/03/commission-
truth-and-reconciliation-4-march-2008.pdf

10
Independence of the commission would suffice for its good work. They noted that the

commission would decide its own budget. It will decide on its own working methodology

and how to investigate and report. Finally they would be free from any political

influence.19

The Commission when established shall seek to find the truth in cases before it. Influence

from other quarters should be avoided in making recommendations and drawing of final

report. Thus the report should represent the people’s views as was collected and collated.

The Commission shall be given powers of investigation, including the right to call

persons to speak with the Commission, and powers to make recommendations that shall

be considered and implemented by the government or others. These recommendations

may include measures to advance community or national reconciliation; institutional or

other reforms, or whether any persons should be held to account for past acts.20

Government and other State offices shall provide information to the Commission on

request, and provide access to archives or other sources of information. It is urged that

other Kenyan and international individuals and organizations also provide full

cooperation and information to the Commission on request. The Parties encourage strong

financial support to the Commission. It is expected that the Government of Kenya will

provide a significant portion of the Commission’s budget. Other funding may be obtained

by the Commission from donors, foundations, or other independent sources.21

19
Ibid
20
See Supra note 18
21
Ibid.

11
 CHAPTER TWO

2.0 Truth, Justice and Reconciliation Commission: The Kenyan Case

The concept of using truth commissions around the world is a new institution in the

universe of law and justice; and is a vehicle for transitional justice. Each country where it

has been established –starting in Argentina and later in Uganda, South Africa, El

12
Salvador, Chile, Argentina, Peru, Ghana, Sierra Leone, among others – has had to

improvise and craft an institution that was determined by the particular country’s

traumatic history and the balance of the political forces. That is why there is no model

truth commission anywhere that Kenya can simply mimic.22 Kenyans should learn from

the experiences of all these countries, and decide the type of a truth commission they

desire to establish mindful of the complexities of Kenya’s particular history.

There ware a lot of suggestion to the establishment of Truth Commission in Kenya. The

three suggestions that were put forward to the Task Force for the establishment of Truth

Commission were: That Truth Commission should be entrenched into the new

constitution. This was rejected due a number of factors. First; the Task Force noted that

the idea of entrenchment of the institution into the new constitution was strange. This has

never been witnessed in any part of the world. Further it was argued that a new

constitution was long lived document and yet the truth commission was to work on

specific period of time. Thus Truth Commission is a temporary institution that should not

concern the constitution.

The second idea put forward by proponents of Truth Commission just after the coming

into power by the NARK government was the establishment of Truth Commission by

presidential assent. This was said to be advantageous due to a number factors and

variables that affected the choice to be made. These ware: the speed with which a truth

commission ought to be set up, the powers that would be vested in it, the support that it

22
See “Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission”
Presented to Hon. Kiraitu Murungi The Minister for Justice and Constitutional Affairs on 26 August 2003

13
would garner from various constituencies, and the ability or political will to set up the

commission.23

After taking into account the aforementioned factors and variables the Task Force

recommended the use of Presidential Order for establishment of the Commission. They

noted that through the order the commission will be established with speed. 24Many

Kenyans suggested the formation of Truth Commission by way of an Act of parliament.

They felt that legislating a truth commission would give it adequate powers and insulate

it from the whims of the executive, a fate that has all too often met past presidential

commissions under KANU governments. But they also wanted a Truth Commission

established immediately. The Task Force then had to reconcile these two positions. The

Task Force rejected the legislative route because it was of the view that the Kenyan

parliament has too many competing, vested, and self-protective interests that would

delay, scuttle, or give the country a Truth Commission that would be devoid of any

meaningful powers. Many members of parliament and some political parties are either

ambivalent or hostile to a Truth Commission.25

2.1 Truth Justice and Reconciliation Commission Act Of 2008

Parliament unanimously passed the Truth, Justice and Reconciliation Commission Bill

(herein after referred as TRC ACT) on the 23rd October 2008. The Act goes on to

elaborate the procedure for the establishment the TRC. It notes that the Act shall establish

23
Supra note 22.
24
The Judicial Commission of Inquiry into the Goldenberg Affair is the best example of the advisability of
the presidential route.
25
Supra note 22.

14
a Commission to be known as the Truth, Justice and Reconciliation Commission.26 The

commission shall be a body corporate, have perpetual succession and have a common

seal.27In its operation the headquartered of the commission shall be in Nairobi’s and this

is not limited because the commission will be executing duties by traveling around the

country to gather and collating evidence from various vintage points within the country.

To have power for its operations, the Act gives the corporate entity power of being

capable of suing and being sued28, taking, purchasing or otherwise acquiring, holding,

charging or disposing of movable or immovable property29, borrowing money30and doing

or performing all other things or acts for the furtherance of the provisions of the Act,

which may be lawfully done or performed by the body corporate.31

2.1.1 Membership of the Commission

The commission shall consist of nine commissioners32 who will be responsible for the

function and operation of the commissions. The commissioners shall be composed of

three, at least one of opposite gender, of who shall be non citizens and selected by the

Panel of Eminent African Personalities.33The selected commissioners herein should be

persons who have knowledge of and at least good experience in matters relating to human

26
Sec 3(1)
27
Sec. 3(2)
28
Sec 3(2)(a)
29
Sec 3(2)(b)
30
Sec 3(2)(c)
31
Sec 3(2)(d)
32
Sec 10(1)
33
Sec 10(1)(b)

15
rights laws.34Their names shall then be forwarded to the National assembly for

nomination and thereafter forwarded to the president for appointment.35

The remaining six Kenyan commissioners shall be selected through a process put down

in the First Schedule of the Act. The selection Panel36 shall invite the application of

persons who are interested to be commissioners of the commission. Groups and

organization are also allowed to tender or submit proposal of persons they wish to be

selected as commissioners.37

Four of the six shall have knowledge of and experience in forensic audit, investigations,

psycho-sociology, anthropology and social relations, conflict management, religion or

gender issues.38 The selection panel shall make submission to the national assembly of

suitable qualified persons to be nominated to the posts. This shall be done in a ranking

manner and putting suitable comments to each individual. The national assembly shall

upon getting the names of nominated six finalists, forwarded the same to the minister

34
Sec 10(5)(a)
35
Sec 10(2)
36
The selection Panels shall consist of nine persons appointed as
I. follows: two people jointly nominated by religious organizations namely; the Evangelical Alliance
of Kenya, Hindu Council of Kenya ,National Council of Churches of Kenya, Seventh Day
Adventists, the Supreme Council of Kenya Muslims and the Catholics;
II. One person nominated by the Law Society of Kenya;
III. One person nominated by Federation of Kenya Women Lawyers
IV. One person jointly nominated by Central Organization of Trade Unions and Kenya National Unio
of Teachers
V. One person nominated by the Association of Profession Societies of East Africa (APSEA)
VI. One person nominated by the Kenya National Commission on Human Rights
VII. One person jointly nominated by the Kenya Private Sector Alliance and the Federation of Kenya
Employers;
VIII. One person nominated by the Kenya Medical Association
37
The invitation of the commissioners hall be done
38
Sec 10(5)(b)

16
concerned after approval. The Minister will then forward the names of the finalist to the

President who shall by notice in the Kenya Gazette make the appointments.39

Notwithstanding the above, the commissioners should be persons of sound mind ,good

character, integrity40 and has not in any way been involved ,implicated, linked or

associated with the perpetrators or supporters of the acts and humans right violation or

any other matter which is being investigated by the commission.41Section 10(6) notes that

the commissioners appointed by the operation of the Act should be impartial in the

performance of the function of the Commission and shall enjoy the confidence of the

Kenyan people.

The composition of the commissioners is very important to achieving the objectives of

the commissions. The effectiveness and outcome of a truth commission largely turns on

who is appointed to serve in key positions. Commissioners control the resources, the

major decisions not specified by mandate, the priorities, the work plan, and the final

report. Because the commission possesses significant power, its membership should have

relevant subject-matter expertise and should represent the diversity of victims, society,

and other major stakeholders.42In the Kenyan case, different parties to the National

Accord must be represented fully if not equally to give a balance to the decision made in

the execution of its functions.

39
See Sec 6 of the First Schedule of the Act.
40
Sec 10(6)(a)
41
Sec 10(6)(b)
42
Renee Dopplick “Truth and Reconciliation in Post-Conflict Nepal: the Suitability of the Peruvian Truth
and Reconciliation Commission Model” Electronic copy available at: http://ssrn.com/abstract=1222964
as at 22nd Jan 2009.

17
The non-inclusive method adopted by the NTGL43 Chairman to select the nine

commissioners of the proposed TRC in Liberia was a major setback to the good

performance of the commission. Mr.Brant who was the Chairman of the NTGL in

January 2004, without prior consultation with other stakeholders, announced the names

of TRC members.44

In Chad, for example, it became apparent that the truth commission was used to discredit

the old regime and legitimize the new one.45 In the case of El Salvador, for example, the

violence was seen as so polarizing that no Salvadoran could fairly assess what had

happened. The UN secretary-general, with the agreement of the parties to the peace

accords, selected a former Colombian president, a former Venezuelan foreign minister,

and a former president of the Inter-American Court of Human Rights to conduct the Truth

Commission.46

Another area that the United Nations had come of great assistance to the nations in the

appointment of commissioners was after the violence of Timor-Leste. An Independent

43
The NTGL draws its leadership from representatives of the various armed factions as well as members
of civil society.
44
See Dr Abdul Rahman Lamin “Truth, Justice and Reconciliation: Analysis of the Prospects and
Challenges of the Truth and Reconciliation Commission in Liberia” available
www.iss.co.za/pubs/Books/TortuousRoad/Chap10.pdf as at 22nd Jan 2009,where he notes that:
This move understandably drew immediate fire from critics. They contended that the chairman’s
actions could potentially undermine “ownership” of the process, something that was of crucial
importance to the overall success of the commission and the process of democratic consolidation
in Liberia. While these criticisms are well placed, it appears from careful reading of the situation
that Bryant was merely taking advantage of a legal void that existed at the time. Although Article
XIII (1) of the CPA called for the establishment of a TRC, it did not spell out the process that
should be followed prior to the appointment of commissioners
45
Brahm, Eric. "Truth Commissions" Beyond Intractability Eds. Guy Burgess and Heidi Burgess. Conflict
Research Consortium, University of Colorado, Boulder Posted: June 2004
http://www.beyondintractability.org/essay/truth_commissions/ as at 22nd Jan 2009
46
Supra note 45.

18
Special Commission of Inquiry 47for Timor-Leste was established after the request of the

prime minister to the UN. The appointment of international commissioner to the

commission was to give the process of the TRC to have relevance in international forum

an also be independents in its finding and in compilation of the reports .The influence of

national player could not affect the function the commissioners as no connection would

be found with national interests.

In Kenya, the parities to the dialogue committee that resulted to the speedy enactment of

the TRC Act should have a say in the selection of the commissioners. Although they

should have a say to the selection of the commissioners, they should not be allowed to

make appointments of their cronies and sympathizers. This is to deter the selected

commissioners from advancing partisan interest over the core objectives and values of the

commission. With the derailment of the objectives of the commission, the people on the

ground will not be able to have trust to the commission hence it will lose its core

function: Reconciliation.

2.2.1 Functions and Objectives of the Commission

The core objective of TRC is to promote peace, justice, national unity, healing, and

reconciliation among the people of Kenya.48Section 6 of the Act also enumerates some of

47
See the Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste
available at www.ohchr.org/Documents/Countries/COITimorLeste.pdf as at 22nd Jan 2009. The report
notes that:
On 8 June 2006, the Senior Minister and Minister for Foreign Affairs and Cooperation of Timor-
Leste wrote to the Secretary-General of the United Nations inviting the United Nations to
“establish an independent special inquiry commission” to “review the incidents on 28 and 29 April
and on 23, 24 and 25 May, and other related events or issues which contributed to the crisis”
48
Sec 5

19
the functions of the commission. To be able to achieve the objectives herein and function

as noted herein, the Act mandates the commission to be able to operate as a quasi judicial

body where they can investigative, inquire and making recommendations to particular

issues.

2.2.2 Investigation Role

The TRC is mandated to carry out investigation and hold hearings to establish an

accurate, complete and historical record of violations and abuses of human rights and

economic rights inflicted on persons by the State, public institutions and holders of public

office serving and retired, between 12th December 1963 and 28th February 2008,

including antecedents, circumstances, factors and context of such violations as well as the

perspectives of the victims and the motives and perspectives of the persons responsible

for commission of the violations.49

Part C of the objectives of the TRC include the investigation of gross human rights

violations and violations of international human rights law as well as abuses that

occurred, including massacres, sexual violations, murder and extra-judicial killings and

determining those responsible for the Commission of the violations and abuse.

2.2.3 Gross violation and abuses on Humans Right

The kind of history this state had undergone over the past cannot be forgotten. Different

kinds of human right violation have been part and parcel of this state for a very long
49
Sec 5(a)

20
period of time. Kenya's parliament in the KANU regime just after Moi got into power

and on his orders reinstated the detention laws which had been suspended in 1978. 50

Colonial era laws, like the Chief's Authority Act, the Public Order Act, the Preservation

of Public Security Act, the Public Order Act, and the Penal Codes, gave the president the

right to suspend individual rights guaranteed by the constitution. 51 To that effect, Kenyans

wanted to know the real truth of some of the violations visited upon them over the KANU

era.

Section 6(a)52 gives power to the TRC to be able to investigate Gross human right

violations53 which has been in this country for every long time. Torture which had been

prohibited not only in our national laws but also in international instrument had been a

method that the government used to silent its critic. Tortures that had been occasioned to

some people who ware against the government also fall within the TRC mandate.

Between 1989 to 1999, Kenya saw one of the worst human rights violations in its history.

Moi accused advocates of multiparty politics of subversion, and thereby got a fresh

50
See, Kimondo, G. K. "The Bill of Rights", in The Citizen and the Constitution. K. Kibwana, G. K.
Kimondo and J. T. Gathii, Editors. 1996, Nairobi: Claripress,
51
Ibid
52
Sec 6(a) provides that the TRC can investigate violations and abuses of human rights relating to
killings,
abductions, disappearances, detentions, torture, ill-treatment and expropriation of property suffered by any
person within the specified period
53
Sec 2 interpret gross human rights violations” means
a) violations of fundamental human rights, including but not limited to acts of torture, killing,
abduction and severe ill-treatment of any person;
b) imprisonment or other severe deprivation of physical liberty;
c) rape or any other form of sexual violence;
d) enforced disappearance of persons;
e) persecution against any identifiable group or collectivity on political,racial, national, ethnic,
cultural, religious or gender or other grounds universally recognized as impermissible under
international law;
f) any attempt, conspiracy, incitement, instigation, command, or procurement to commit an act
referred to in paragraph (a) and (c), which was committed during the period 12th December 1963
and 28th February 2008 and the commission of which was advised, planned, directed, commanded
or ordered, by any person acting with a political motive;

21
excuse for detaining a new generation of his critics. A number of the champions of

multiparty politics--John Khaminwa, Raila Odinga, Mohammed Ibrahim, Gitobu

Imanyara, Kenneth Matiba and Charles Rubia--among others, were detained under

inhuman conditions and without trial. Human rights lawyers, Gibson Kamau Kuria and

Kiraitu Murungi, fled to the United States to avoid being jailed.54

Murder and extra-judicial killings occasioned by government machinery was very much

evident during the post election violence. The OHCHR made a report55 that implicated

the Kenya Police to have had used firearms and live ammunition to respond to

demonstrations and related violence in Kibera, Eldoret and Kisumu and that the Police

failed to abide by the principle of proportionality and of necessity. Information gathered

by the Fact Finding Mission suggested that, in a number of cases, the police failed to use

the full range of “crowd control tools” such as teargas, batons and rubber bullets before

resorting to firing live ammunition and that in many instances it failed to issue clear

warning to the demonstrators and the crowd prior to shooting with live ammunition56.

In view of the foregoing and in so doing the kind of investigation into the violations of

human right, the TRC will be investigating the context in which, causes and

circumstances under which the violations and abuses occurred. It will identify the

individuals, public institutions, bodies, organizations, public office holders, the State,

state actors, or persons purporting to have acted on behalf of any public body responsible
54
See Korwa G. Adar and Isaac M. Munyae 2001. "Human Rights Abuse in Kenya under Daniel Arap Moi
1978-2001. African Studies Quarterly 5(1): available at http://web.africa.ufl.edu/asq/v5/v5i1a1.htm as at
22nd Jan 2009.
55
See Report from OHCHR Fact-finding Mission to Kenya, 6-28 February 2008 available at
http://www.ohchr.org/Documents/Press/OHCHRKenyareport.pdf as at 7th Feb 2009.
56
Supra note 54.

22
for or involved in the violations and abuses.57The TRC will also be able to investigate if

such kind of violations were deliberate or were planned by the state which is vested with

the responsibility of guarding and protecting the same.58

2.2.4 Recommend Prosecution

Finally, the TRC have the duty to recommend for prosecution of the persons who are

responsible or were involved in the human rights and economic rights violation and

abuses.59The criminal justice system in Kenya should take charge to find way of bringing

the perpetrators of such kind of human’s right violators to justice. This should not only be

seen to be done but also should be done.

In South Africa, it was noted the provision for amnesty procedure that was put in their

Act was away in which the court system escaped the possibility of influx in the

prosecution of cases that might have resulted out of the truth justice process. Akin to the

Kenya system, the criminal justice system was blamed to be dysfunctional .Research

showed that in South Africa only four percent of those who commit crimes such as

murder, armed robbery, rape and serious assaults spend more than two years in jail. This

demonstrates a collapse in the capacity of the police to investigate and arrest, attorneys

general to prosecute, judges to convict and correctional facilities to imprison,60

57
See Sec 6(b)
58
Sec 6(d)
59
Sec 6(f)
60
See Paul van Zyl: “Dilemmas of Transitional Justice: The Case of South Africa’s Truth and
Reconciliation Commission” available at
http://www.swisspeace.ch/typo3/fileadmin/user_upload/pdf/KOFF/17_dilemmas.pdf as at 4th Jan 2009

23
Kenyan criminal justice is not fully competent because some political crimes committed

by highly skilled operatives trained in the art of concealing their crimes and destroying

evidence are difficult to prosecute. The Kenyan police have an extremely small number

of properly trained detectives. In certain towns more than a third of prosecutorial posts

are empty and cannot be filled. Even in those towns that are fully staffed, attorneys

general complain that they do not have the prosecutorial resources to complete more than

a small percentage of the cases ready for trial. It has been see that most perpetrators of

heinous crimes walk free because the state cannot prove case against them.

In agreeing with the foregoing, particular provision was inserted in The TRC Act which

provided procedure and methods to be used in the processing Amnesty application.61

2.2.4 Victim Identification

The TRC have the mandate to investigate into the whereabouts of victims and by

restoring the human and civil dignity of such victims.62 They will grant them an

opportunity to relate their own accounts of the violations of which they are the victims,

and make recommendation for reparations measures in respect of them.63In any society

meeting the challenge of transitional justice, victims or their families should be provided

with a platform to tell their stories and have their testimony publicly acknowledged.64 The
61
See Part III (Sec 34-41) of the Act that deal with Amnesty Mechanisms and Procedures. This will be
disused in if full details letter.
62
Sec 6(t)
63
See Topic dealing with Reparation where it has been discussed in full length and in details.
64
See David A. Crocker ,”Truth commissions, transitional justice, and civil society” an article available at
http://www.puaf.umd.edu/facstaff/faculty/CrockerVita105.pdf

24
TRC will identify and specify the victims of the violations and abuses and make

appropriate recommendations for redress.65

2.2.5 Economic Crimes

The TRC Act in section 6(g) gives the TRC mandate to investigate economic crimes

committed within the specified period. The Act also mandate the TRC to be able to

investigating economic crimes, such as grand corruption and the exploitation of natural or

public resources and how they have been dealt with.66

2.2.6 Sexual Crimes against women

The mandate of the TRC also cover crimes committed against the women of Kenya. Such

kind of crimes of sexual nature against female victims67 has been noted to include rape.

The kind of violence that was visited upon women after the disputed election will also be

covered under this mandate.68

Most truth Commission around the world had been noted to be gender neutral. This did

not act as a bar to investigate some of the gender based crimes. Though their mandates

were formally gender neutral, commissions in Guatemala, South Africa and Peru

interpreted mandates to address sexual violence.69

65
Sec 6(c) and Supra note 60.
66
Sec 6(n)
67
Sec 6(h)
68
See an article by Koffi Annan: OP-ED: available at:
http://www.dialoguekenya.org/docs/ArticlebyH.E.KofiAnnan_17.04.pdf as at 28 Jan 2009 where he
explains what had happened in Kenya after disputed election. He notes in verbatim that:
What gripped the country was the stuff of nightmares: rapes, mutilations and communal violence.
Children lost their parents. Families lost their homes. Communities lost trust in each other.
69
Christine Bell and Catherine O’Rourke “Does Feminism Need a Theory of Transitional Justice? An
Introductory Essay: The International Journal of Transitional Justice, Vol. 1, 2007, 23–44, available at:

25
In Haiti, Sierra Leone and East Timor/Timor Leste, gender or sexual violence was

explicitly incorporated into commission mandates thus giving them an explicit authority

to look at some of the violence afflicted upon women. The South African Truth

commission developed a new concept in its hearing where it could hear cases that

involved the crimes afflicted to women. This was called the Gender hearing. The

establishment of a gender unit in the Peruvian Truth and Reconciliation Commission and,

most recently, the integral role played by the United Nations Development Fund for

Women (UNIFEM) in providing technical advice, training and other support to staff and

those who testified before the Sierra Leone Truth and Reconciliation Commission is an

indication that most commissions have developed such concept.70

Sexual violence cases are generally under reported. This is often complicated by the fact

that members of government may have been the perpetrators. Women victims face a

difficult choice. Disclosure of sexual assault is risky and can result in estrangement from

their family, mistreatment of their children and social exclusion. On the other hand, if

crimes are not reported, women may be ineligible for reparations or other forms of legal

redress. Access to commissions is another challenge for women. Often those in rural

areas have no way to get to cities where commissions are typically held.71

http://www.peacejusticeconference.info/download/Bell%20and%20O%27Rourke%20Does%20Feminism
%20Need%20a%20Theory%20of%20Transitional%20Justice.pdf

70
Supra note 66.
71
See Sanam Naraghi Anderlini, Camille Pampell Conaway and Lisa Kays: available at
http://www.huntalternatives.org/download/49_transitional_justice.pdf as at 4th Feb 2009.

26
2.2.7 Educate the Public72

To be able to achieve the objective of the commissions, The TRC is mandated to teach

the public and engage the public so that they can be able to contribute positively to

achieve of the objectives of the act.

2.2.8 Land Inquiry73

The colonial legacy and mismanagement of land distribution especially in the Rift Valley

has generated conflict over what is often perceived as the most important form of wealth

and source of political power.74 Land has been a major sauce of conflict in this part of the

world.75With the kind of attitude formed over the ownership of land, the violence that
72
Sec 6(i) notes that educate and engage the public and give sufficient publicity to its work so as to
encourage the public to contribute positively to the achievement of the objectives of the
Commission;
73
Sec 6(o) notes inquiring into the irregular and illegal acquisition of public land and making
recommendations on how the land can be repossessed or how the cases on such land can be
determined
74
See Report From OHCHR Fact-Finding Mission To Kenya, 6-28 February 2008.
75
Ibid notes:
In the early 1900s, The British colonialists evicted the Rift Valley’s communities (Nandi, Maasai,
Samburu and Turkana) to create the “White Highlands”. Agricultural labourers from the
neighboring provinces, particularly Kikuyus from the Central Province, were recruited to work on
the colonial farms. In the aftermath of Kenya’s independence from the British Empire, some of
these agricultural labourers took advantage of the land-buying schemes offered by President Jomo
Kenyatta and bought the land they had worked on for the British colonialists. These small lands
were in Nakuru, Uasin Gishu, Nandi, Trans Nzoia and Narok districts. This situation was largely
maintained until 1992-1993, when, during President Moi’s tenure, politically-instigated violence
forced many Kikuyu farmers out of their farms. At this point, some ministers and national
politicians from the Kalenjin and Maasai communities rallied on the reestablishment of a
majimbo4 system of Government – a federal system based on ethnicity5. Some proponents of
majimboism simultaneously called for the expulsion of all other ethnic groups from land they
claimed to be historically theirs, and the return of the “Kikuyu outsiders” to their “homeland” or

27
rocked this country after the 2007 disputed election were some of the major result of the

unresolved land problem that continue to haunt Kenya year after year. In the same gist,

the official holders of public offices sold land to alleged investors without following the

right procedure. The officially allocated forest in this country was seen to be coming

down after politically correct fellows bought some of the forest land. Amazingly the

former regime awarded public land to some of the leaders that ware able to dance to the

tune of the president.

2.2.9 Economic Marginalization76

The previous regimes had been accused to have economically marginalized certain parts

of this country. This was evidenced by the way certain areas in the state developed more

rapidly than others and yet independences was received on the same time. Politically,

areas that ware not pro government or fell within the opposition ware blocked from

accessing investors. The Luo Nyanza which since independence had leaders who ware

critics of the incumbents governments in many ways and ideas ware always sidelined in

terms of development. The allocation of resources to this area was minimal hence the end

result was the increase in poverty and under developments.

The Northern part of this country has always reflected the negative part of Kenya. The

government allocation of resources to this area has always been minimal hence the level

“ancestral home”, in the Central Province.

76
Sec 6(p) inquiring and establishing the reality or otherwise of perceived economic marginalization
of communities and make recommendations on how to address the marginalization;

28
of development has not been able to redeem this area from the economic problems. From

poverty, inequity, equitable access to opportunity and regional imbalances. Kenyans in

such areas were faced with insurmountable poverty; people developed a sense of

hopelessness which in turn can lead to acts of violence.77

2.3 Operations Of The TJRC

The Act gives powers to the commissioners to manage how it will function within the

defined mandate. The Independence of the commission in the performance of the

functions is provided for in Section 21 of the Act. It allows the commission to make

decision without due regard to any authority or direction from any person or authority.

Section 27 allows the commission to make special arrangements and adopt specific

mechanism and procedure for addressing the experience of women, children, person with

disabilities and other vulnerable groups.

In the same gist, the Act allows the commission to form such committees that it may

consider necessary for the better performance of the function of the Act. This is allowing

the commission to be able to make work easy. In South African model of TRC three other

committees were set up to carry out the mandate of the TRC. The first was the Human
77
See Kofi Annan Article. Supra note 64.

29
Rights Violations Committee (HRV) whose purpose was to investigate human rights

abuses between 1960 and 1994. It was to use statements made to the TRC to find victims

and then to refer the victims of gross human rights violations to the second committee,

the Reparation and Rehabilitation (R&R) Committee, whose job was to provide support

for victims in an effort to restore the victim’s dignity. This committee was also assigned

the task of formulating policy proposals and recommendations on how to promote the

rehabilitation and healing of the survivors, their families, and the community at large.

The goal was to develop effective ways to prevent such abuses in the future. Finally, the

Amnesty Committee’s (AC) had the duty to ensure that applications for amnesty would

be carried out in accordance with the act which established the process. If granted an

amnesty, the applicant would not be subject to future prosecution. Each amnesty

application had to be granted final approval by the president, who was `Nelson Mandela.

Once granted amnesty, the recipient would no longer be eligible for future prosecution in

either criminal or civil court. Those who did not come forward continued to be eligible

for future criminal prosecution. Supporters of this approach have called it restorative

rather than retributive justice.78

The TRC will be able to administer and manage the funds allocated to it. Section 44 of

the Act notes that the funds to the commission shall consist of monies appropriated to it

by parliament, such other monies or asset that might accrue to the commission in the

course of the exercise of it powers and also from donations. What is evident from the

above is that the parliament of Kenya shall have the full control of allocation of funds to
78
Campbell, Patricia J. 2000. "The Truth and Reconciliation Commission (TRC): Human Rights and State
Transitions--The South African Model," African Studies Quarterly. 4(3): 2
http://web.africa.ufl.edu/asq/v4/v4i3a2.htm

30
the commission. With this, the impartiality of the commission will be in question. The

depending on donor funding for the operation of the TRC is something that had failed

some commissions in the past. The Sierra Leone TRC suffered a great setback when the

funding from the donor community delayed. Some donors also wanted to cut down the

funding after failure of the Sierra Leone to do as they wished. 79The SLTRC’s work

suffered as a result. The commission could only spend one week in each province for

public hearings, far too little time. This resulted to less participation of the people hence

the process lost its relevance. Everywhere the commission went people thought one week

was too short and People were eager to testify but only two or three dozen individuals

gave testimony in each of the provinces. Locals were frustrated by the limited time

available to them, as were commissioners. Reconciliation efforts were largely left to the

localities because the SLTRC had neither the time nor the money to do them. Funding

questions dogged the writing and publishing of the report; the TRC had to seek external

funding for the children’s and picture versions, which were underwritten by UNICEF and
79
See Beth K. Dougherty. (2004). "Searching for Answers: Sierra Leone's Truth and Reconciliation
Commission." African Studies Quarterly 8, no.1: available at http://web.africa.ufl.edu/asq/v8/v8i1a3.htm as
at 14 Feb 2009.
…..As noted above, the SLTRC’s management difficulties undercut its credibility with donors,
exacerbating its financial worries. From the beginning, the SLTRC operated under a cloud of
inadequate funding. OHCHR estimated the SLTRC would need close to $10 million for 12 months
of operation, with additional funds required for the start-up phase. Although this is not out of line
with the budgets of other TRCs, early donor response was very weak. The SLTRC inauguration
ceremony was delayed for a month to July 2002 because a mere $1.1 million had been pledged.
Over the summer of 2002 the budget was slashed to $6.5 million, which necessitated cuts in
staffing and program activity even as the sensitization campaign was getting under way. The
SLTRC’s troubled performance did much to harm donor willingness to contribute. By May 2003,
the funding situation was so grave OHCHR was again forced to trim the budget, down to $4.5
million. Several weeks later only $2.3 million had been received of the $3.7 million pledged.[28]
Once the hearings phase was well underway, and donors were satisfied that the commission was
on track, funding increased significantly to cover costs for the rest of 2003.Current estimates place
the final cost at $5 million, an increase necessitated by the extension of the report writing phase
into summer 2004.Many TRCs have run short of funding or felt constrained by an inadequate
budget. In the case of the SLTRC, several factors can account for the scarce funding: poor
fundraising efforts by OHCHR and the commission itself; donor fatigue; competition for funds
with the SCSL, established in January 2002; and the SLTRC’s unimpressive start. Generally truth
commissions are funded by their national governments, but the Government of Sierra Leone was
not in a position to offer much support; it donated $97,000 and a building for the Secretariat.

31
the International Center for Transitional Justice.80Thus the kind of commitment that the

donor community had showed to Kenya after the post election violence will only

continue when the state and the government show that it is willing and committed to

follow the objective of the TRC to the latter.

Conclusively, although the Act had been faulted when it was in the preliminary stage

before the enactment, the kind of issue raised over the same ware taken into consideration

hence at the moment, the Act expresses the popular views.

CHAPTER THREE

3.0 Post Conflict Kenya: Options for Truth Justice and Reconciliation

3.1 Truth

The commission in Kenya is mandated to establish an accurate, complete and historical

record of violations and abuses of human rights.81Through truth telling, the Commission

attempts to document and analyze both the actual violations and the structures that

allowed or facilitated the abuse.82 But this has been marred with difficulty. The question

remains as to what is meant by the word “truth”. In One instance scientific historians

agreed that a truthful reconstruction of the past should be based on a critical study,

interpretation, and narration of facts.83

3.1.1 International Protection for Right to Truth

80
Ibid.
81
Sec.5 of TJRC Act of 2008 enumerates some of the core objectives and mandate of the TJRC
82
Transitional Justice as an Emerging Field
83
Jacobus A. du Pisani and Kwang-Su Kim. (2004). "Establishing the truth about the apartheid past:
Historians and the South African Truth and Reconciliation Commission" African Studies Quarterly 8,
no.1: http://web.africa.ufl.edu/asq/v8/v8i1a5.htm as at 15 March 2009.

32
The right to ytruth id not just a waord that has been coind locally to help in the in

fulfilling the aobjectives of the commsionn.The right to truth requires states to provide

information on: the causes of the events that have led to a person having become victim

of a human rights violation; the reasons, circumstances and conditions of the violations;

the progress and results of the investigation; the identity of perpetrators (both

subordinates and their superiors); and, in the event of death or enforced disappearance,

the fate and whereabouts of the victims. Both in its individual and collective dimensions,

the right to truth is an inalienable right, which stands alone. It should be considered as a

non-derogable right and should not be subject to limitations.84

There has bee no internationally claimed definition of the word truth. Scholars in tear

quest to find a binding definition of the word truth had to go through rigorous process of

combining facts from different areas and school of thought. Some scholars rejected the

notion that historical truth is a commodity that can be discovered simply by revealing the

facts about the past, and advocated the idea that historical truth is constructed on the basis

of individual experience.85 Although historians wish to maintain standards of proof and

evidence, most realize that historical truth, as it is filtered through their minds, remains

partial and subjective to a greater or lesser extent. By that the Kenyans is the quest for

the truth about past are left to depend on some of the people who had historical

experience of the past.

84
Study on the right to the truth, Report of the Office of the United Nations High Commissioner for
Human Rights, UN Doc. E/CN.4/2006/91, 8 February 2006, para. 38 and Conclusions.
85
Ibid

33
The South African Truth and Reconciliation Commission (TRC) was mandated to

establish “the truth” about the causes, nature and extent of gross violations of human

rights in the country between 1960 and 1994.86One of the major tasks of the TRC of

South Africa in terms of the Promotion of National Unity and Reconciliation Act (Act no.

34 of 1995) was “to establish the truth in relation to past events” and to provide as

“complete a picture as possible” about these events.87The Act specified that the

investigation should cover the nature, causes, and extent of human rights violations. This

included the antecedents, circumstances, factors and context of such violations, and the

motives for and circumstances in which they had occurred, as well as the fate or

whereabouts of the victims. The investigation was to cover the perspectives of both the

victims and the perpetrators. It was stipulated that the investigation should be done in the

form of conducting investigations, holding hearings, and compiling a comprehensive

report.88 While commenting on legality of the TRC, Constitutional Court judge I.

Mahomed offered his own, lengthy, interpretation of the envisioned model.89

86
Ibid
87
Ibid.This truth-finding mandate was restricted to a specific period of 1 March 1960 to 10 May 1994 and
a specific type of past event which included gross violations of human rights.
88
Ibid
89
He noted in the South African Constitutional Law Reports 1996, p. 1017 …
Much of what had transpired during the past conflict was shrouded in secrecy. The truth had been
concealed and was not easily accessible. The Act sought to address this massive problem by
encouraging a public unburdening of grief on the part of the survivors and families of victims so
that they could be helped to discover what in truth had happened, and to receive the collective
recognition of a new nation that they had been wronged. The truth which was so desperately
desired would be more likely to be forthcoming if the perpetrators of past violations were
encouraged to disclose the whole truth with the incentive that they would not receive punishment
if they did. . . . In the process, families of victims and the survivors would be better enabled to
discover the truth; perpetrators would also have the opportunity of relieving themselves of a
burden of guilt or anxiety with which they might have been living for many years. In the process
the country would begin the process of healing the wounds of the past, transforming anger and
grief into an understanding and thereby creating the climate essential for reconciliation and
reconstruction.

34
Some of the advantages of TJRC in seeking to know the truth about the past relate to

building and reconciling Kenya. Through the process, the truth and the true nature of

Kenyan governance system would become public knowledge, thus the creation of a

national memory. No longer would anyone in Kenya pretend that the abuses perpetrated

under previous regimes did not happen or were not as bad as many of its victims had

been alleging. The process will ensure that those who refused to believe the full extent of

Kenyan historical stories will have a nationally acknowledged report over the same.

Nevertheless, we should not assume that knowledge of the truth alone will satisfy the

relatives of victims. Take the South African case of Joyce Mthimkulu whose son,

Siphiwo, had been killed by the police. At a hearing of the Truth and Reconciliation

Commission’s Committee on Human Rights Violations, she said this: “If they can just

show us the bones of my child, I’ll be grateful. Where did they leave the bones of my

child? Where did they take him? Who handed him over to them? What did they do to

him?” However, when in applying for amnesty her son’s killers answered her questions

and told her the truth, she found that she wanted more: she wanted justice.90 Narration of

some of the perpetrators of the post election violence would be seen to be bringing the

truth to the fore, but this will not be equally possible due to the fact that the victims and

those who ware affected would wish to have justice be done even if any amnesty

agreements had been made. Thus it does not follow that it will quieten their resentment

or pacify their cries for justice.

3.2 Justice

90
This terribly poignant moment was recorded in “Getting Away with Murder?” an excellent BBC TV
documentary about the T.R.C., which was presented by Michael Ignatieff and originally broadcast on
November 1, 1997, as part of the “Correspondent” series.

35
In the aftermath of conflict or authoritarian rule, people who have been victimized often

demand justice. This has been witnessed in Kenya where citizens demanded to be given

justice over some atrocities that had been occasioned to them. Justice in TJ is foremost

and predominantly justice for victims. However, victims have not only interests, as part

of a broad notion of justice; they have also rights, namely a right to justice.91 Kofi Annan

in the Report Secretary General on Transitional justice refers to justice as:

“an ideal of accountability and fairness in the protection and vindication of rights and the

prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the

interests of victims and for the well-being of society at large. It is a concept rooted in all national

cultures and traditions and, while its administration usually implies formal judicial mechanisms,

traditional dispute resolution mechanisms are equally relevant92

Justice is also some form of judicial protection either by access to the legal system of the

violator state which - according to human rights case law - has an obligation to

investigate, prosecute and sanction the responsible or by way of an alternative (public)

forum where the victims can confront and challenge the perpetrators93.Thus, justice in TJ

reaches well beyond retributive, criminal justice, in fact, that criminal justice cannot be

fully enforced.94To put it bluntly, the price for peace is often justice or a “trade off

between peace and justice.95The act also mandates the commission to make investigations

or make recommendations concerning any other mater with the view of promoting and

achieving justice within the context of the Act.96

91
These rights have been elaborated in great detail by the Human Rights case law, They are also explicitly
recognized in the ICC Statute. Art. 68 (3), 75
92
See Report Secretary General on Transitional justice, para. 7
93
The Legal Framework of Transitional Justice
94
The legal framework of Transitional Justice as he quotes Ruti G. Teitel, Transitional Justice (OUP,
Oxford 2000) 55;
95
Ibid
96
See Sec 5(2) of the Act

36
The notion that there cannot be peace without justice emerges forcefully in many

communities. But justice can be based on retribution which is based on punishment and

corrective action for wrongdoings or on restoration which involves the emphasizing the

construction of relationships between the individuals and communities.97Mark Drumbl

has devised a typology of post-genocide societies that describes the relationship between

victim and oppressor groups and prescribes an appropriate model of justice. He

delineates three types of societies:

I. Homogenous Society: oppressor group has “eliminated” the victim group i.e. Nazi

Holocaust, Kosovo, Aboriginal communities in Canada and Australia.

II. Dualist Society: both groups coexist within same nation-state with no possibility

of a territorial division (i.e. Rwanda)98.

III. Pluralist: Oppressor group coexists with victim group and third group; or, several

oppressor or victim groups i.e. Iraq, Bosnia, South Africa

Compared to the Kenyan case, one of the above typologies does fit exactly into the

Kenyan system. This is because the society in Kenya the communities’ coexisted within

97
See Sanam Naraghi Anderlini, Camille Pampell Conaway and Lisa Kays: available at
http://www.huntalternatives.org/download/49_transitional_justice.pdf as at 4th Feb 2009
98
Alana Tiemessen. "After Arusha: Gacaca Justice in Post-Genocide Rwanda" African Studies Quarterly 8,
no.1: (2004) available at: http://web.africa.ufl.edu/asq/v8/v8i1a4.htm as at 5 March 2009
As for Rwandan Drumbl’s description of a dualist post-genocide society lists a specific set of
characteristics. First and foremost, his type of society requires that both groups, victims and
oppressors, coexist within the nation-state and territorial division is not possible. Secondary
characteristics include: control of political and economic power (and the groups’ numerical
significance), level of participation in the violence, and geographic distribution of the two groups.
Rwanda complies with the characteristics of a dualist post-genocide society on all counts. In
Rwanda, Tutsis and Hutus both coexist within an overpopulated nation-state where territorial
division between the two groups would be impossible. Additionally, both groups live in the same
communities and participate in civil society, sharing culture with social status. In terms of power
sharing, the Tutsis wielded the most political power despite being numerically weaker at only ten
to fifteen per cent of the population. With regard to the level of participation, documented
testimonies indicate that a large number of civilians participated and a large number of victims and
survivors remain.

37
the state very well. The different tribes that ware in arms against one another are within

the territory. The oppressors and violators of humans’ rights are in Kenya. These are

characteristic of a dualistic society.

3.2.1 Elements of Retributive Justice

Retributive Justice is concerned with both the rewarding of good and the punishment of evil. 99

Retributive justice is based on the principle that people who have committed human

rights violations, or ordered others to do so, should be punished in courts of law or, at a

minimum, must publicly confess and ask forgiveness. The perpetrators of violence and

any other violence of human rights during the post election violence should be punished

in court and publicly confess and seek for forgiveness not only from the victims but the

nation at large. From that it can be deduced that justice has been seen to be dispensed

with. Retributive justice by definition is dispensed through a criminal justice process

instituted at national, regional or international level. Such a process can be in the form of

an international criminal court or tribunal set up in the aftermath of conflict to prosecute

perpetrators of human rights abuses.100

99
Rouge Roderick O'brien “Justice, Law, And The Proposed Tribunal For The Khmer”
100
Dr Abdul Rahman Lamin “Truth, Justice and Reconciliation Analysis of the Prospects and Challenges
of the Truth and Reconciliation Commission in Liberia”…he further notes that:
Recent examples of a retributive model of justice include the
International Criminal Tribunals for the former Yugoslavia (ICTY), and
Rwanda (ICTR), and the Special Court for Sierra Leone(a “hybrid”
international tribunal). An important development in the evolution of
international criminal law generally, and more specifically in reinforcing
retributive justice, is the adoption in 1998 of the Rome Treaty to
establish the International Criminal Court (ICC). The ICC, which came
into force in July 2002 following the ratification of the Rome Treaty by
60 state parties, is a significant development that not only reaffirms
the rapid evolution of individual human rights, but also underscores
the erosion of state sovereignty, and the whole concept of“sovereign
impunity”

38
In dispensing justice to such victim of atrocities as enumerated in the Act, the victims

should not see this as revenge as this has not been the basic obligation of justice. The

Kenya legal system plays a very crucial role over dispensing of such justice. The failure

of the legal system to dispense justice over history has been the reason for the formation

of TRC. If there is no effective legal system to undertake the institutional revenge of a

people, then the way is open for private revenge. Ultimately, this is socially destructive,

and can lead to a never-ending cycle of revenge without closure.101 Those who uphold

this approach contend that punishment is necessary to:

a) make perpetrators accountable for their past actions;

b) deter future crime; counter a culture of impunity;

c) and create an environment in which perpetrators and victims can realistically be

expected to live next to one another.

Other positive elements of retributive justice, according to its supporters, believe that it

help in avoiding vigilante justice in which victims seek punishment, or justice, from their

perpetrators, potentially creating cycles of revenge. It also help ensuring that the

perpetrators do not rise to power again because in Kenya, the perpetrators have been

having an easy time by rising to power because there has not been any credible institution

to interdict them. The process will also make people have individualistic guilt to ensure

that entire communities or groups are not held responsible for crimes; and it will

instilling trust in the new legal, justice and political systems, ensuring that people believe

101
See Jacobus A. du Pisani and Kwang-Su Kim. (2004). "Establishing the truth about the apartheid past:
Historians and the South African Truth and Reconciliation Commission" as noted in supra note 83

39
in those systems and do not become cynical towards them if perpetrators go unpunished

for crimes.

Retributive models of transitional justice suffer from several shortcomings. Prosecutions

in this process focus primarily on the perpetrator and do not give victims the attention or

healing they need. Trials can lead to re-victimization, as those giving testimony are cross-

examined in a potentially hostile and humiliating proceeding. Criminal courts, due to the

necessity for clear-cut “yes” or “no” answers, may limit information sharing, making it

difficult to obtain the whole truth. Additionally, perpetrators have no incentive to confess,

tell the whole truth or make the record public. Another serious shortcoming is that there

would be no examination of systemic and institutional structures e.g. secret police,

paramilitary units) that allowed or contributed to the crimes.

Retributive justice also includes restitution—recovery of losses or compensation to

rectify harm. It generally takes the form of a financial payment made to the victim either

by the offender or by the state. Both retribution and restitution have symbolic value, as

they are concerned with making the victim return to the level they ware before the act in

question happened.

3.2.2 Restorative Justice:

40
Restorative justice is typically dispensed through a legally constituted

process that lacks prosecutorial powers, such as a “truth commission”

or a “national inquiry.102Restorative Justice is concerned with restoring the parties,

as far as possible, to their original position. In a sense, it is more about "rights" and less

about "wrongs."103 Restorative justice is also a process through which all those affected

by an offence—victims, perpetrators and by-standing communities—collectively deal

with the consequences. It is a systematic means of addressing wrongdoings that

emphasizes the healing of wounds and rebuilding of relationships. Restorative justice

does not focus on punishment for crimes, but on repairing the damage done and offering

restitution.

The goals of restorative justice include:

a) resolving the original conflict;

b) integrating all affected parties

c) healing the pain of victims through apologies and restitution; and

d) Preventing future wrongdoing through community building measures.

Truth telling and the meeting of victims and perpetrators are important in the process, as

are expressing remorse and making restitution to the victim and his or her family. In

conflict-affected societies in which children have perpetrated violence, a restorative

justice approach can be a means of getting children to admit to their actions and to

acknowledge their wrongdoing, while providing a means of rehabilitation and return to

“normal” life without permanent stigmatizations.

102
Dr Abdul Rahman Lamin “Truth, Justice and Reconciliation Analysis of the Prospects and Challenges
of the Truth and Reconciliation Commission in Liberia”
103
Ibid

41
3.3 Reconciliation

The preamble of the TJRC states clearly that the main reason for the Act was to give

Kenyans a lasting peace and harmonious co existence. This, Act stated could not be got

without being in a forum which is free ad reconciliatory. Sec 6(s) gives the commission a

mandate to inquire into the causes of ethnic tension and make recommendations on the

promotion orf healing, reconciliation and coexistence among ethnic communities in

Kenya. The basis issue clear from the above is that the differences that ware present

between different ethnic groups were very crucial issue to address for the purpose of

getting reconciliation. It also said that local and international consensus exists in regard to

countries like Bosnia and Rwanda that there can be no reconciliation without retribution,

at least so far as the most serious offenders are concerned.104

In definition, the term Reconciliation varies in meaning and significance. It can simply

mean co-existence or it can mean dialogue, remorse, apology, forgiveness and healing. It

can be got from the National Level or from personal individualistic level. For each

person, reconciliation can begin at a different point in the post conflict transition like in

Kenya: It can start from the negotiating table: this was witnessed mostly when the

country was in a problem, the negotiations between the two opposing parties after the

2007 election was the first step toward reconciliation. Thus this will culminate to

reconstruction of the community, neighborly relationships, families, etc. which were

broken due to pain, distrust and fear. The second instance is when there is prosecution of

104
David Little “A Different Kind of Justice: Dealing with Human Rights Violations in Transitional
Societies”

42
perpetrators where the victims see that justice has been got and move forward with the

belier that justice has been done. Construction of a non racist and non-exclusive ideology,

such as a new social consensus out of respect for human rights that is expressed in terms

of political changes. Promotion of intercultural understanding among cultures whose co-

existence has deteriorated; it promotes mutual understanding, respect and development. a

moral conversion: a personal change, acceptance of others and acknowledgment of one’s

own mistakes, crimes, etc.restitution of the victim’s integrity and a path to the

psychosocial rebuilding of experiences of suffering and resistance.a way of coming to

terms with the past by the victims and those responsible for the atrocities

An important point about reconciliation is that it is not an attempt to restore things to how

they were before the conflict, but rather about constructing relationships in a way that

allows everyone to move forward together. It is therefore not so much about an end

result, such as punishment, but rather about a sequence of processes that build and

improve relationships.

In defending the approach of the South African Truth and Reconciliation Commission

(SATRC) toward wrongs committed in the name of apartheid, Bishop Desmond Tutu

invokes the African notion of “ubuntu”.105

UBUNTU says I am human only because you are human. If I undermine your humanity I

dehumanize myself. You must do what you can to maintain this great harmony, which is

105
The concept of ubuntu was also used to legitimize the TRC’s call for reconciliation. Difficult to
translate precisely, ubuntu encompasses the notion of “humaneness” or “humanness.” A common Xhosa
expression states, “Umuntu ngumuntu ngabanye bantu,” which translates as “People are people through
other people.” Thus, ubuntu emphasizes community over individuals.

43
 perpetually undermined by resentment, anger, desire for vengeance. That’s why African

jurisprudence is restorative rather than retributive.106

For Tutu, reconciliation as ubtuntu explicitly excludes retribution.

David little in his article A Different Kind of Justice: Dealing with Human Rights

Violations in Transitional Societies goes on to distinguish between the Christian

forgiveness and other forgiveness as a way of reconciliation .He notes that Walter Wink, a

Christian theologian and New Testament107 scholar who brings his perspective to bear on

the questions of “transitional justice,” describes the meaning of reconciliation in the

following way:

“Reconciliation . . . requires that I and the other person, from whom I have been separated by

enmity, mutually forgive each other and walk into a common future together. Forgiveness is thus a

component of reconciliation, but only a first step. We may forgive our enemies in our hearts, but

reconciliation requires that we pick up the phone or meet face to face and try to work things

out.”108

106
Cited by David Little. “A Different Kind of Justice: Dealing with Human Rights Violations in
Transitional Societies”
107
David Littlke in “A Different Kind of Justice: Dealing with Human Rights Violations in Transitional
Societies” goes on to state that:
Central to the act of forgiveness in this parable is the annulment of both the debt the first servant
owed the master, and the punishment (being sold or imprisoned) that is taken to apply to those
who default on their loans. Indeed, one meaning of apkvni—the Greek word “to forgive’’—is to
“cancel,” “remit,” or “pardon,” while a related meaning is to “give up” or “let go, ” suggesting a
radical alteration of the relationship between the forgiver and the forgivee. It is of course
interesting that retribution reenters the picture after the first servant fails to replicate the
forgiveness he had earlier received from his master. Nevertheless, the obvious moral of the story is
that retribution, if it occurs at all, is divine or supernaturalin character, and not temporal, a position
generally maintained in Jesus teachings. In the verses immediately preceding the Parable of the
Unforgiving Servant, Jesus enjoins his followers to forgive offenders “seventy times seven.” It
must be remembered, of course, that however much Jesus’ emphasis on forgiveness and
supernatural judgment may exclude the idea of earthly retribution, the idea is not excluded from
other parts of the New Testament. The First Letter of Peter explicitly states that mundane
governors have been “sent by [God] to punish those who do wrong and to praise those who do
right” (2:13-14), and a similar thought appears in Paul’s Letter to the Remans (13:1-5). Just how
the concepts of forgiveness and temporal retribution, which exist side by side in the New
Testament, are to be harmonized is an abiding perplexity for Christians.
108
Walter Wink, “When the Powers Fall: Reconciliation in the Healing of Nations” Minneapolis:
Fortress Press, 1998), p. 14.

44
National reconciliation refers to a political form of consensus and interaction among

Parties and leaders. This will involve the political leaders in Kenya and those who are

endowed national personalities to come to work together to show the locals that they can

be unified in some way or the other. The differences of the national leaders are often

some of the major instigators of violence against different communities and different

party supporters. In South Africa, the need for reconciliation was captured in the National

Constitution of 1993 which stated in verbatim:

“This Constitution provides a historic bridge between the past of a deeply divided society,

characterized by strife, conflict, untold suffering and injustice, and a future founded on the

recognition of human rights, democracy and peaceful coexistence and development opportunities

for all South Africans irrespective of color, race, class, belief or sex.109

The preamble to the Constitution clearly reflects a commitment to redress past injustices

and to create a just society through the recognition of the contribution of each South

African group: “We, the people of South Africa, recognize the injustices of the past;

Honor those who suffered for justice and freedom in our land; Respect those who have

worked to build and develop our country; and Believe that South Africa belongs to all

who live in it, united in our destiny.”110In a different context from the above a lot of

scholars have argued that “Nations do not have collective psyches which can be healed,

nor do whole nations suffer post-traumatic stress disorder and to assert otherwise is to

109
Ambrose Moyo “Reconciliation and Forgiveness in an Unjust Society dialog” A Journal of Theology •
Volume 41, Number 4 • Winter 2002
110
Ibid

45
psychologies an abstract entity which exists primarily in the minds of nation-building

politicians.111

Societal reconciliation refers to the longer-term, more difficult process of community and

individual reconciliation. In the Kenyan case, this will involve the coming together of the

tribes that had been against one another. It will go into communities accepting the other

adverse communities. Reconciliation also requires sensitivity to the particular culture of

those involved.112 For reconciliation to occur, it is indicated that the following are

necessary:

a) some form of justice

b) community-level confidence-building measures; and

c) strategies and mechanisms for dealing with actors who could potentially derail the

peace process.

Reconciliation is often seen to be crucial if peace processes are to succeed, as it

establishes relations among parties after a conflict and decreases the risk of further

violence. In recent years, in the majority of post conflict states, efforts have been made to

implement both justice and reconciliation mechanisms. In general, justice mechanisms

111
See Lyn Graybill and Kimberly Lanegran. "Introduction to Special Issue on TRCs: Truth, Justice, and
Reconciliation in Africa: Issues and Cases" African Studies Quarterly 8, no.1: (2004:
http://web.africa.ufl.edu/asq/v8/v8i1a1.htm as at 15 March 2009
112
The primary source of meaning for many Cambodians is their religion. The majority is Buddhist, and the
process of reconciliation needs to be based on a Buddhist understanding of what reconciliation means.
But Buddhism, as with other religions, suffered great losses during the period of Khmer Rouge rule, and
both monks and people may lack the religious sophistication to approach the task well20. One of the
questions, for example, is the Buddhist belief in Karma, which sees suffering in this life as the
consequence of wrongdoing in a previous life. If taken in an over-simplified way, this may lead to
blaming the victim of atrocities for their suffering, and taking the focus away from the perpetrator.

46
have focused on the leaders or key instigators of conflict or repression, while

reconciliation mechanisms have been aimed at the lower ranks.

In the Kenyan situation, the scene contradicts its self. How can the reconciliation be

achieved and yet the scene remains the same. The kind of injustice witnessed some years

back still haunt us and to a worse extend the current regimes still operate in unjust way.

In Kenya today it would be totally unchristian to plead for reconciliation

and peace before the present injustices have been removed. Any such

plea plays into the hands of the oppressor by trying to persuade those of

us who are oppressed to accept our oppression and to become reconciled

to the intolerable crimes that are committed against us. That is not

Christian reconciliation, it is sin. It is asking us to become accomplices in

our own oppression, to become servants of the devil. No reconciliation is

possible in without justice.113

It is not the movement towards reconciliation presupposes an equally

important movement towards the creation of a just society. In other words

there can be no reconciliation without a visible effort to bridge the gap

between the impoverished majority and the rich. A new social order has to

be created. This is the lesson learned from the Zimbabwean experience

which failed to address these issues from the beginning114

113
See Recons il n Foegiv
114
See Ibid

47
3.3.1 The Role of the Church

From the Christian stand point Reconciliation entails a lot of issues. The

factors that relate to reconciliation have been biblically oriented. Different

values will have to be splayed for one to be able to achieve reconciliation.

Thus in the Kenyan case, the church that had taken sides just before the

election should come over to unify the people of Kenya inspirit with the

national reconciliation. The Church’s involvement in justice and

reconciliation issues must be seen from its self understanding as a

community of sinners who have been justified through faith in Jesus Christ

or any other Supreme Being that they do hold much .The Church therefore

can only be an instrument of God’s justice and is called upon to work for

social justice, and in that way manifest God’s justice in all spheres of

human existence. In South Africa the African philosophy of ubuntu helps

Africans to understand faith not as something that is “restricted or limited

to an individualistic relationship to God, but necessarily includes the

neighbor, and thus concern and responsibility for the social and indeed

political dimensions of life. The poor people are created in the image of

God. Jesus stands in their midst demanding their recognition and justice

for them. Thus this notion helps the majority poor reconcile very well with

the rich. The gab between the poor and the rich is minimized and the

concept and ideology of reconciliation is achieved. In fact, Christianity

48
played such a large role in the South African TRC that some observers

have criticized the TRC leadership for adopting a religious-redemptive

understanding of their mandate.115

The mandate of the TRC as noted above include providing a platform for

both the perpetrators of human rights violations and the victims to tell

their story. Sec 5(g) of the Act notes that the commission will give victims

perpetrators and general public with a platform for non-retributive truth

gelling that chart a new moral vision and seeks to create a value based

society. In South Africa, the perpetrators who confessed their contribution

to the atrocities of the apartheid period in question were granted amnesty.

They were pardoned. The victims were able to look into the face of those

who made them suffer so that their oppressors could see and feel the pain

they caused and hopefully come to repentance.

It is argued that in the Bible, the issue of forgives is very essential for the

healing of the wounds of the victims. Matthew 18:15-17 notes that:

“If another member of the church sins against you, go and point out the fault

when the two of you are alone. If the member listens to you, you have

regained that one. But if you are not listened to, take one or two others with

you, so that every word may be confirmed by evidence of two or three

witnesses. If the member refuses to listen to them, tell it to the church; and if

115
Megan Shore and Scott Kline The Ambiguous Role of Religion in the South African Truth and
Reconciliation Commission, PEACE & CHANGE, Vol. 31, No. 3, July 2006 available at

49
 the offender refuses even to listen to the church, let such one be to you as a

Gentile and a tax collector”116

117
As has been pointed out by Ambrose Moyo, forgiveness has to include

not only true knowledge of the situation, but also repentance leading to

change. Only a turning away from sin, from patterns of the past, can

enable forgiveness to avoid the charge of ‘cheap grace’.

In fact forgiveness without repentance leads but to the continuation of sin.

Convinced that there could be no future without forgiveness, Tutu saw the TRC as an

opportunity for perpetrators to repent their sins and survivors to redeem them (as well as

purify their own instinct for revenge) through the gift of grace. As a consequence, the

entire proceedings of the Commission became framed within the Christian ethical

economy of sin, guilt, confession, and redemption. Rather than a politico-economic

system of domination, the apartheid era was seen as a moral stain upon the nation (an

original sin) that needed to be cleansed through the redemptive power of forgiveness. In

this way, the TRC turned into a kind of national purification ritual with the

Commissioners assuming the role of secular divinities providing absolution for sins.118

116
The story of Zacchaeus the Tax Collector is a classic Lesson on restitution or making
reparation (Luke.19:1-9). Zacchaeus’ encounter with Jesus led to a conversion which enabled him to
declare: “Look, Lord! Here and now I give half of my possessions to the poor, and if I have cheated
anybody of anything, I will pay back four times the amount” (19:8). Zacchaeus voluntarily gave up some
of his riches as his contribution towards creating a just society. Reconciliation with God meant for him
reconciliation with those he had dehumanized by impoverishing them through the exploitation of their
meager resources. Zacchaeus was prepared to make reparation. Only after he had taken that gigantic step
did Jesus acknowledge that “Today salvation has come to this house” (19:9). Salvation only comes
through reconciliation with God and with fellow human beings. Zacchaeus made a public confession of
his sin, and took the necessary steps to improve the quality of the lives of those that he had exploited.
117
Amros Moyo
118
See Paul Muldoon “Reconciliation and Political Legitimacy: The Old Australia and the New South
Africa” Australian Journal of Politics and History: Volume 49, Number 2, 2003, pp. 182-196 available
at…

50
Lyn Graybill and Kimberly Lanegran119 in quoting the works of Tristan Borer, they say

that some of the problems in identifying the multiple meanings of reconciliation used by

people inside and outside of South Africa’s TRC are interconnected and creates a web

that is not easy to discern. She demonstrates that the TRC’s founding documents, as well

as its final report, failed to define clearly the kind of reconciliation the commission was

charged with building. She finds two models of reconciliation permeating the

commission’s statute and report. “Interpersonal or individual reconciliation,” in which

victims and perpetrators of gross human rights violations have their relationships restored

with the victims being healed, is one goal which the commission sought to achieve. Yet,

the commission also strove to hasten “national unity and reconciliation” in order to create

a nation “democratically at peace with itself.” Borer argues that the lack of clarity

hampered the commission’s work and has affected the way it has been judged. She finds

that while the TRC was empowered to contribute primarily to “national unity and

reconciliation,” the greater popular expectation was for the TRC to foster “interpersonal

or individual reconciliation.” The unfortunate result of this dichotomy is that “the TRC is

most likely to be judged in a way that makes it least likely to appear successful.

Forgiveness

Forgiveness is a constitutive element of reconciliation. “If no real effort at achieving

forgiveness is made, reconciliation is doomed to be partial and vulnerable”120

119
Lyn Graybill and Kimberly Lanegran
120
J ens Meierhenrich Varieties of Reconciliation Law & Social Inquiry Volume 33, Issue 1, 195–231,
Winter 2008

51
3.3.2 Pillars for Reconciliation

The process of reconciliation requires change of these societal beliefs. Scholars have

developed some of the major issues that need to be addressed in order to come up with a

reconciled society. Such include.

a) Beliefs about societal goals .The reconciliation process require changes in each

group’s beliefs about its own goals in order to remove the cognitive foundations

of the conflict. This condition requires, in essence, abolition—or at least indefinite

postponement—of the societal dreams and visions, expressed in specific goals,

which caused the intergroup conflict.121

b) Beliefs about the adversary group. The kind of stereo type in which members of

the society look at one another should be changed. This historical notion that

some communities n d tribes are he best destined for a political office should be

avoided and changed to deter any conflict in any forth coming election122.

c) Beliefs about intergroup relations. Reconciliation requires the formation of new

beliefs about the relations between the two groups that were engaged in the

intractable conflict. These beliefs should concern the nature of the relations in the

present, future, and past. With regard to the present, there is a need to develop

beliefs about the importance of normalizing relations with the former adversary.

There is a need to legitimize the construction of the new relations and provide a

121
Daniel Bar-Tal From Intractable Conflict Through Conflict Resolution to Reconciliation: Psychological
Analysis: Political Psychology, Vol. 21, No. 2, 2000 School of Education Tel Aviv University available at
122
An such the particular tribes and communities in Kenya should legitimize and personalize other groups
and tribes that they ware in conflict with. Legitimization allows members of the ingroup to view the
adversary group as belonging to the category of acceptable groups, behaving within the boundaries of
international norms. In essence, it grants humanity to adversary group members after years of denying it
to them. Personalization, in turn, enables members of the ingroup to see members of the adversary group
as human beings and to perceive them as individuals, as humane as members of the perceiving group
Are.

52
 rationale for this change. With regard to the future, there is a need to establish

beliefs about cooperative and friendly relations, emphasize their importance, and

describe the utility of their amicable nature.123

123
Ibid

53