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{
"id": 186982,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/186982/?format=api",
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"type": "speech",
"speaker_name": "Mr. Mungatana",
"speaker_title": "The Assistant Minister for Medical Services",
"speaker": {
"id": 185,
"legal_name": "Danson Buya Mungatana",
"slug": "danson-mungatana"
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"content": "Mr. Temporary Deputy Speaker, Sir, on 24th July, just before the House adjourned, I had said that in the Memorandum of Objects and Reasons for this Bill, the Minister for Justice, National Cohesion and Constitutional Affairs said that the main reason for having this law is to promote peace, justice, national unity, healing and reconciliation among the people of Kenya. Mr. Temporary Deputy Speaker, Sir, I went into great lengths to explain that the category of the people who must be chosen as Commissioners in that Commission must not just be people who are from respected professions, clergy or whatever we respect in this country. But they must be people who, despite being in those professions - for example, the legal profession - they must also be people who have had a record of promoting peace, justice, national unity, healing and reconciliation among the people of Kenya. Mr. Temporary Deputy Speaker, Sir, I argued that in those professions, there are people who have no record, whatsoever, of promoting peace, justice and reconciliation among the people of Kenya. Mr. Temporary Deputy Speaker, Sir, today, I want to debate the question of the confidentiality clause, which is Clause No.25 in this Bill. The proposed Clause No.25 of the Truth, Justice and Reconciliation Commission Bill, 2008, proposes that the hearings of the Commission shall be open to the public. Mr. Temporary Deputy Speaker, Sir, in the proposed Sub-rule 2, it goes on to give the exceptions where someone will not wish to proceed in the public, in private or in camera. It appears to me that this law proposes that everything should be in the open. All the proceedings showing the injustices of this country covering the period from 1963 todate, mentioning leaders, ordinary people, relatives and communities, should be done in the open. Only in exceptional circumstances should the proceedings go in camera. I want this House to seriously examine the clause relating to confidentiality. Why do I say that? I have two instances or examples that I would wish to bring to the attention of the House. In El Salvador, when they had the Truth, Justice and Reconciliation Commission, they highly publicised everything they did. As a result of that, they had an immediate problem of containing the confidentiality of witnesses. How will they protect the witnesses who appear before the Commission? The experience in El Salvador was that many people who went to give evidence disappeared because the Commission was unable to secure and guarantee the safety of the witnesses who came there. There was some results. But is it the result that we want for this country? That is the question that we need to look at. The second example was the Haiti National, Truth and Justice Commission. In this second instance, it was set up in December, 1994. Unlike us, it was through an executive order. In the Haitian case, things were confidential, unlike the El Salvado Truth, Justice and Reconciliation Commission. For this one, things were completely confidential. But what was the result? Within a period of just eight weeks, they received 7,000 complaints. Ordinary people appeared before the Commission even though the meetings were not publicised, the Commission received thousands of complaints just within a period of eight weeks. When somebody knows that when he will say this and mention a political leader either a retired or a current one, as an organiser of gangsters activities that affected this country, that person will not give that evidence. If a perpetrator of an injustice knows that he was 2280 PARLIAMENTARY DEBATES July 31, 2007 involved in organising gangster to raze homes, kill people, rape women and abduct little children; but he wishes to confess or give information and say: \"Actually, I was sent by so-and-so,\" let us not lose the thinking that it is since 1963. Mr. Temporary Deputy Speaker, Sir, in this country, there has been major political assassinations. When a perpetrator is willing to give evidence; he is being haunted by the blood of the innocent people he killed and wants to confess. But is he going to give it in the open or he has to follow a special procedure so that he can give that information? This person will be deterred. He will not be motivated to give that information because he knows he can be hunted down. True healing and reconciliation will not take place in the open. I believe that we need to look at this clause relating to confidentiality once again. We have had serious ethnic tensions in this country. This law is meant to create an avenue for forgiveness, reconciliation, peace, national unity and healing. We have seen it right now. When you hear a politician being mentioned, and I am at liberty to mention Mr. ole Ntimama because he came out publicly and said: \"The people who mentioned me in the Waki Commission have been sent by people\". Are we really going to get information? This is because people are going to be mentioned and tensions are going to come up again. The real purpose of this Truth, Justice and Reconciliation Commission Bill will not be achieved. Mr. Temporary Deputy Speaker, Sir, I argue very strongly that we should go the Haitian way where it was the rule to observe confidentiality of the witnesses to enable them give the information and evidence. If it is a confession, you confess that I was sent by so-and-so to do all these things. After the Commission has finished taking evidence, prosecutions will begin where some people who have been mentioned are not ready to ask for forgiveness or reconciliation or to give compensation. When they are collecting that evidence, there should be a clause which is missing here, in my opinion, that creates the standards of evidence that are to be utilised. On the basis of these standards of evidence to be utilised, then those people who refuse to accept and offer to unify or reconcile with the people they offended can be prosecuted. I propose that there should be the ordinary standards of evidence. This is not going to be covered in the Evidence Act because these are not there in the Evidence Act. We should say: \"The ordinary standard of evidence is where more facts are for than against that person who is being accused of having committed that kind of offence\". That is standard number one. The second standard should be overwhelming evidence of evidential background where we say: \"If the evidence adduced removes any possibility of a contradictory finding, then that is standard evidence number two, which is more heavier than the first evidential standard that I have put\". The third standard that I suggest should be the substantial evidence standard where the evidence adduced is so strongly supported that there could be no other explanation other than the one that has been given. If, for example, Mr. Mungatana has been mentioned, and the evidential standard adduced it under standard number three, it is so substantial that there is no other explanation, then these the people who should be immediately contacted irrespective of their status in life. They should be brought forward and asked whether they organised those gangsters or whether they participated in economic crimes against certain communities, and so on. I then offer that, \"yes, I did that, but I am sorry. I have been haunted by this and I am asking for forgiveness from these people or community that I offended\". That person should be forgiven. If given the evidential standard number three and he is not there, straight way, they should be prosecuted. If we follow this kind of procedure, I believe with all my heart that we should have taken a step forward toward reconciling the people of Kenya. If some has been found and there is evidence; it is so strong that there is no other explanation, there is no other thing except that-- if you have 20 people confessing that you were paid by so-and-so to do this and this, that person should be prosecuted. If he is not willing to offer compensation and apology to the people, then that person should be July 31, 2008 PARLIAMENTARY DEBATES 2281 prosecuted. In that way, justice will be achieved. National unity will also be achieved in the sense that the people who will be compensated will see that something has been done. Mr. Temporary Deputy Speaker, Sir, I feel that a stronger procedure should be given emphasis in terms of allowing the perpetrators to admit the wrongs they have carried against the people of Kenya. I feel that the Act is not--- Mr. Temporary Deputy Speaker, Sir, since my time is up, I beg to support with those amendments."
}