By Beverline Anyango Ongaro
From the pre-2010 constitutional dispensation to the current ‘constitutional moment’ as declared by President Uhuru Kenyatta in reference to the Building the Bridges Initiative, the quest for reparations by victims of gross human rights violations remains a constant feature.
In the aftermath of the 2007/08 post-election violence (PEV 2007/08), the Commission of Inquiry into the Post-Election Violence (CIPEV), known as the ‘Waki Commission’, documented a myriad of human right violations. These included mass displacements and 1,133 deaths – 405 caused by gunshots and 900 cases of sexual violence.
Security agents, militia groups and civilians perpetrated the sexual violence against men, boys, women and girls in a context of large-scale violence. Subsequently, the PEV 2007/08 victims alongside those of other historical injustices such as torture during the dark decade of the single-party rule in 1982-1992, extrajudicial killings and enforced disappearances that occurred since 1963 to 2008, participated in the Truth Justice and Reconciliation Commission of Kenya (TJRC) public hearings countrywide.
The TJRC documented these violations, their impact and consequences on the victims, and made comprehensive and concrete recommendations in its report that include volumes IIA and IIC, which are dedicated to gross human rights violations, including sexual violence in non-electoral and electoral contexts.
Forms of reparations
The comprehensive and diverse forms of reparations recommended in the TJRC report include restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. These reparations captured the deepest aspirations of the victims who presented their views to the Commission and are also in line with international human rights principles and guidelines.
Accordingly, compensation ought to be appropriate and proportionate to the gravity of the violation and the circumstances of each case, recognising the wide-ranging harm faced by victims. These harms include physical or mental harm and lost opportunities such as employment, education and social benefits. Others are material damages and loss of earnings, moral damage, costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
Rehabilitation of victims includes providing adequate, available, accessible, acceptable and quality legal, social and health services, comprising medical, sexual, reproductive and mental health services to complete the victims’ complete recovery.
Satisfaction includes public and official acknowledgement of the victims’ violations, judicial sanctions against persons liable for the violations, judicial decisions restoring the dignity and the rights of the victims, and establishment of memorials in honour of the victims.
Guarantees of non-recurrence include legal and institutional reforms, accountability of the perpetrators, educational, societal and cultural interventions.
Report not yet adopted
The TJRC handed its report to President Uhuru Kenyatta on 21 May 2013. Thereafter, Parliament was to adopt the report to facilitate the full implementation of the comprehensive reparations framework. However, to date, Parliament is yet to adopt the report officially. In 2019 under unclear and rather strange circumstances, the government gazetted the report but excluded volumes IIA and IIC that provide lists and details of human rights violations including the incidents of sexual violence as gross human rights violations.
Notwithstanding this failure of adoption, there is progress towards implementing some of the report’s recommendations. For instance, security sector reforms established the Independent Policing Oversight Authority (IPOA), an independent policing oversight civilian oversight body, and police officers’ vetting by the National Police Service Commission. Nonetheless, considering the facts and factors, the following gaps and challenges are outstanding.
Gaps and challenges in addressing the human rights violations
Firstly, the victims are still grappling with the consequences of the violations, particularly the PEV victims of sexual violence. To date, these victims contend with physical injuries, anxiety, depression, post-traumatic stress disorder, mental conditions, HIV/AIDS and sexually transmitted infections. Other issues are stigmatisation by family and community, desertion by spouses and family members, unplanned children, sexual dysfunction and economic disempowerment.
The Grace Agenda, an organisation founded to restore the dignity and self-agency of victims of sexual violence during PEV 2007/08, the majority of whom bore children, made submissions to the Building Bridges to a United Kenya Taskforce in August 2019. The organisation’s poignant and passionate submissions revealed that the victims still contend with the consequences mentioned above because of the nature of sexual violence meted on them. They have not received rehabilitation and compensation to meet the needs of children borne out of the violations.
On 26 March 2015, President Uhuru Kenyatta in a strong and right step, acknowledged historical injustices. He directed the Treasury to establish a Kshs. 10 billion Restorative Justice Fund to facilitate restorative justice processes. The Public Finance Management (Reparations for Historical Injustices Fund) Regulations 2017 were drafted, in 2017, to facilitate the operationalisation of the Fund. However, to date these Regulations are yet to be adopted; therefore victims of historical injustices such as the Grace Agenda’s constituents are yet to be compensated.
Secondly, in the absence of reparations, particularly on the perpetrators’ accountability, the cycles of human rights violations continue to spin, as there is no deterrence against the perpetrators.
The Kenya National Commission on Human Rights (KNCHR) documented sexual violence during the PEV 2007/08. It noted similar patterns in the 2017 electoral period. It characterises electoral related sexual violence as a premeditated act ‘used as a weapon for electoral-related conflict.
It documented at least 201 sexual violence cases. Still, it cautioned that the actual figure was likely higher because these reported cases were documented in 11 of the 47 counties. Further, albeit a raft of legal and institutional sector reforms, given there has been no accountability for enforced disappearances and extrajudicial executions this remains an intractable problem.
The Missing Voices Coalition (MVC) has documented an increase of enforced disappearances and extrajudicial execution since 2007, with 144 cases recorded in 2019 and 166 in 2020.
Lack of ownership
Thirdly, the delayed implementation of the TJRC report may prevent Kenyans from taking ownership. This leaves gaps in the past narratives, which can be exploited by political actors who are oblivious to the victims’ suffering and the need to have a tranquil society anchored on human rights as its foundation.
The little prominence given to TJRC’s implementation in the Report of the Steering Committee on the Implementation of the Building Bridges to a United Kenya Taskforce: Building Bridges to a United Kenya from a Nation of Blood Ties to a Nation of Ideals, which was launched and disseminated in 2020, attests to this fact.
While the BBI report’s background section acknowledged that Kenyans called for implementing the TJRC and other commissions’ reports, it did not explicitly recommend the entire implementation.
Fourthly, the delayed implementation confines the affected to the status of being victims and deprives them of evolving to be victors and survivors of their violations.
According to the International Centre for Transitional Justice, approximately 2000 young persons participated in the TJRC hearings. A major concern is the effect of the absence of comprehensive reparations and the lack of political actors’ commitment to accord them and their families’ reparations. It is this state of affairs that continuously erodes the mainstay of patriotism, especially among the youth.
Tied to this is the cost of human rights violations to the victims and the community as they struggle to recover from the violations. For instance, KNCHR documented that it would cost Kenyan taxpayers Kshs. 372,524, 686 to compensate Nyayo Torture Chamber victims who successfully filed 126 suits against the government for acts of torture during the dark decade in 1982-1992.
To date, some of these torture victims, who are members of the National Victims and Survivors Network, are yet to receive compensation from these suits. These victims also presented their views to the BBI Taskforce, calling for adoption and full implementation of the TJRC report.
Weaponising and overlooking victims
Fifthly, there is the danger of weaponising the quest for reparations as the reasons for pursuing reparations are lost and drowned by ‘other interests’. The phrase ‘accept and move on’ has been used in political contests and would not be remote from being directed at the victims. This is a valid concern considering that the CIPEV and TJRC reports are not easily accessible, including failure to gazette TJRC’s volumes IIA and IIC. The potential risk of victims of gross human rights violations being overlooked is real.
Sixthly, the delay can desensitise society to human rights violations, normalising human rights violations’ occurrences and fuelling impunity. Documentation by various human rights actors that include the MVC and the KNCHR attests to this forlorn fact.
What is the way forward?
Francois-Marie Arouet 17th Century French philosopher, also known as Voltaire opined, ‘I would rather obey a fine lion, much stronger than myself, than two hundred rats of my own species.’
The myriad gross human rights violations, including those documented by CIPEV and TJRC, nibble at our toes, curtailing our steady exponential growth economically, socially and politically. So, where do we go from here?
Fortunately, we have a road map even as we aspire to build bridges, whether through BBI or resolute implementation of Kenya’s Constitution and other laws. This is to afford comprehensive reparations, as detailed in the TJRC report.
Further, under the various human rights instruments that Kenya is a State Party to, international human rights bodies have continued to recommend the provision of comprehensive reparations to victims ensure accountability of perpetrators, and the implementation of the TJRC report.
These bodies include the Committee on Elimination of Discrimination against Women during a review of Kenya’s implementation of the United Nations Convention on the Elimination of All Forms of Discrimination against Women in 2017; the Human Rights Council during the Universal Periodic Review on Kenya in 2020; and the Human Rights Committee during Kenya’s review of its implementation of the International Covenant on Civil and Political Rights, in 2021.
These bodies’ recommendations fortify the cries for comprehensive reparations by the victims, alongside the Kenyan national anthem that remains a constant daily prayer for reparations.
Beverline Anyango Ongaro is an Advocate of the High Court of Kenya, working as a human rights, governance, and gender expert. firstname.lastname@example.org Twitter: @ongarobeverline