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"id": 188062,
"url": "https://info.mzalendo.com/api/v0.1/hansard/entries/188062/?format=api",
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"type": "speech",
"speaker_name": "Ms. Karua",
"speaker_title": "The Minister for Justice, National Cohesion and Constitutional Affairs",
"speaker": {
"id": 166,
"legal_name": "Martha Wangari Karua",
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"content": " Mr. Temporary Deputy Speaker, Sir, I beg to move that The Truth, Justice and Reconciliation Commission Bill, be read a Second Time. The Bill seeks to establish a Truth, Justice and Reconciliation Commission as a body corporate that will be charged with the responsibility of promoting peace, justice and national unity; healing and reconciliation among the people of Kenya. The Bill is borne out of the realisation that lasting peace and co-existence cannot prevail in Kenya unless historical injustices and violations and abuse of human rights have been addressed. At the outset, I must state that this is one of the negotiated Bills - Bills which were envisaged by the National Accord - and were agreed upon when we, as Parliament and as a country, agreed that we need to come together to redress whatever ails this country. It, therefore, emanates from the deliberations of the National Dialogue team, which represents this House. Having said that, I would like to take hon. Members down the memory lane. In August, 2003, a task force was created by His Excellency the President, headed by our very own Prof. Makau Mutua. One of the key findings of this task force was that Kenyans overwhelmingly desired a Truth, Justice and Reconciliation Commission. We failed to set up the Commission then, and we also failed to set it up throughout the last Parliamentary term. I believe that, as a nation, we have paid for failing to act then. With the upheavals that were witnessed earlier this year, we should not miss this opportunity of setting up a mechanism through which Kenyans can express themselves and through which, as a nation, we will be able to agree on how to resolve whatever issues that will have come out of this exercise. The Bill, therefore, seeks to form a Commission. It is that law that will deal with historical injustices and violations of human rights. The setting up of the Commission is provided for in Part II, that is the proposed Section 3, which indicates that part which sets up the Commission as a corporate body, with legal powers and also establishes that its headquarters will be here in Nairobi. Clause 5 gives the objectives of the Commission as to promote peace, justice and national unity, healing and reconciliation among the people of Kenya. The Commission will, therefore, be establishing an accurate, complete and historical record of violation and abuses of human rights and economic rights inflicted on Kenyans by the State, public institutions and holders of public office, both serving and retired, between 12th December, 1963 and 28th February, 2008. These two dates are significant. 12th December, 1963 is when we attained Independence while 28th February, 2008 is the date when the National Accord was signed. So, we want to examine how we have dealt with each other as independent State. However, Clause 5A(i) recognises that we may need to go beyond 12th December, 1963 to the antecedents, circumstances and factors so as to contextualise such violations. If we need to go beyond 12th December, 1963 to discover the genesis of the problem, the proposed Clause 5B does indicate that we can go as far back as possible in order to establish a complete picture of the causes, nature and extent of the 2112 PARLIAMENTARY DEBATES July 24, 2008 gross violation of human and economic rights committed between the period I have stated and including antecedents and circumstances. Mr. Temporary Deputy Speaker, Sir, the Commission will also look at perspectives of victims and the motive, and also the perspectives of persons responsible for commission of the violations. In other words, both the victims and perpetrators will have an avenue to go before this Commission and express themselves, so that we may discover the truth and bring ourselves to forgive one another, where applicable and also to heal from the grievances that we may be harbouring against each other. The Commission will also be empowered to conduct investigations and hold hearings, and also investigate gross human rights violations and violations of international human rights law and abuses, including massacres, sexual violations, murder and extra-judicial killings, and will determine those responsible for the commission of the violations and abuses. We have many questions that arise about people who have disappeared or died and it is not known how they died. This will provide an avenue for their families, friends and supporters to come before this Commission and give all the evidence that may either have been suppressed or ignored, to enable vindication of either these crimes or to discover what really happened, so that we may begin to heal. Mr. Temporary Deputy Speaker, Sir, it will also be mandated to investigate economic crimes, including grand corruption and exploitation of natural or public resources with the action, if any, taken in respect thereof. I think we are all aware that one of the big issues that has refused to go is the issue of corruption. There is a feeling by the man on the streets that grand corruption has not been properly handled in this country. There is also the logistical difficulty in that some of the investigations that are going on now date more than a decade back and, therefore, there is the challenge of getting witnesses and documentation. There is also the issue of fear of people with relevant evidence. This Commission will also provide an opportunity for such people to come forward, either in camera or publicly, to say their things, so that we may be able to settle all these issues. Mr. Temporary Deputy Speaker, Sir, another issue that has been with us, and has refused to go, is irregularly acquired land and illegal acquisition of public land. We all know that although we had the Ndung'u Report, we are yet to comprehensively act on it. This proposed Commission, will also be mandated to inquire into the irregular and illegal acquisition of public land and making recommendations on the repossession of such land, or the determination of cases relating to land. Even for the pending cases, there may be recommendations by this Commission which may help us resolve all those past issues. The Commission will also inquire and establish the reality, or otherwise, of perceived economic marginalization of communities and making recommendations on how to address the same. All these are the issues, or the under currents, that precipitated the upheavals that we have witnessed from time to time, especially at the beginning of this year. The mandate will extend to the issue of misuse of public funds and institutions for political objectives, acts of State, repression, including torture, cruelty and degrading treatment. That is the very issue of human rights, which has been raised by various individuals and communities. Also, it will inquire into the causes of political violence before, during and after the elections that were held in 2007 and how to address these causes, so as to prevent future occurrences of such violence. Mr. Temporary Deputy Speaker, Sir, hon. Members may want to know how this Commission will relate to the Commission on Post-Election Violence, which is already ongoing. The Commission on Post-Election Violence, or the \"Baby Commission\" as it is popularly called, is a stop-gap measure while waiting for this long-term Commission. That one will help us to wrap up the issue of the criminal cases arising out of the post-election violence, whereas the Truth, Justice July 24, 2008 PARLIMENTARY DEBATES 2113 and Reconciliation Commission will go beyond the post-election violence into the issues of historical injustices, and all the other issues that I have indicated, including past violation of human rights, economic injustices and marginalisation. It will also, most probably, be able to deal with violations or offences that have occurred during the post-election period, which may not necessarily have been reported or investigated. Mr. Temporary Deputy Speaker, Sir, so, it is a comprehensive way and a long-term issue of dealing with the problems while the post-election Commission or Waki Commission is a short- term measure to address the burning issues. The Commission is also intended to provide victims of human rights abuses and corruption-related offences with a forum to be heard so that their dignity may be restored. It is also to provide an avenue for repentant perpetrators or participants in gross human rights violations to confess their actions as a way of bringing reconciliation after which this Commission will be expected to compile a report providing a comprehensive account and also make its findings and recommendations on measures to prevent future occurrence of such violations. Mr. Temporary Deputy Speaker, Sir, the powers of the Commission are quite wide. The functions of the Commission as proposed in Section 6 go hand in hand with the powers and scope of the Commission and I need not repeat. The Commission will have powers as proposed in Section 7, that the Commission should have powers that are necessary to execute its functions and will not be subject to the direction or control of any other person or authority. For a Commission like this to be able to properly function, it has to be independent and Clause 7 is bringing in this independence. Mr. Temporary Deputy Speaker, Sir, the Commission will also be able to gather by any means it deems, appropriate information including requisition of reports, records, documents or any information from any source which include governmental authorities and will have powers to compel production of such information as and when necessary. It will also have the powers to visit any establishment or place without giving prior notice and also to enter any land or premises as necessary. It is proposed in Section 7 to give the Commission adequate powers to ensure that it is able to carry out its duties. It will also have powers to summon and interview any individual, organisation or group and also to call upon any person, so long as they make adequate provisions for such person's expenses, to attend a session or a hearing. In other words, similar powers to a court of law to summon and compel witnesses. This is the standard in all commissions. The only exception is in Section 7(3) which says that:- \"Protected areas will not be subject to this provision\". Mr. Temporary Deputy Speaker, Sir, there are also penalties provided for in Clause 7(4) for any person who obstructs or otherwise interferes with the work of the Commission and a fine is provided for that. Penalties are also proposed for people who refuse to appear before the Commission without any reasonable excuses. How will this Commission be selected? This is a key issue in any commission. It is proposed that a selection panel will be constituted and it will consist of two people, jointly nominated by a forum of religious organisations which comprise the Episcopal Conference, National Council of Churches of Kenya (NCCK), Evangelical Alliance, Hindu Council, Seventh Day Adventist (SDA) and the Supreme Council of Kenya Muslims (SUPKEM). If you look at that religious sector, it is the same format that has been used in other Bills where we need the religious groups to come together. We are conscious that it may not include every denomination but it broadly represents the religious sector in this country. Two people from the religious sector will be part of the panel and then there will be one person nominated by the Law Society of Kenya (LSK), one person nominated by the Federation of Kenya Women Lawyers (FIDA) and one person jointly 2114 PARLIAMENTARY DEBATES July 24, 2008 nominated by the Central Organisation of Trade Unions (COTU) and the Kenya National Union of Teachers (KNUT). Mr. Temporary Deputy Speaker, Sir, this again broadly represents the workers. One person nominated by the Association of Professional Societies of East Africa, one person nominated by the Kenya National Human Rights Commission (KNHRC), one person jointly nominated by the Kenya Private Sector Alliance (KEPSA) and the Federation of Kenya Employers (FKE) and one person nominated by the Kenya Medical Association (KMA). Other than the bodies that are given a slot specifically, the rest are groups together. We realise that it is not possible to pick each individual sector and make them members of the nominating panel. It will be too unwieldy but I want to circulate to the Members that this is a representative sample of the House. Mr. Temporary Deputy Speaker, Sir, how will this panel go into the selection? This is given in the First Schedule and the procedure is that the selection panel, within 14 days of the commencement of the Act, will advertise in the Kenya Gazette and, therefore, Kenyans will be able to apply. Once you apply, these applications will be forwarded to the selection panel within 21 days of the advertisement. The qualifications of those persons are provided for in the Act and the procedure on how the panel moves is given in the First Schedule. The panel will then nominate the persons, that is, the six appointed persons. The list will be submitted to the Minister for onward transmission to the President for appointment so that it is actually the selection panel hiring but it is the President appointing, which again is standard. Mr. Temporary Deputy Speaker, Sir, to enhance the independence of the panel, the panel will elect its chairperson and vice-chairperson. About the commission that is going to be selected by the panel, whose members are selected by the panel, it will consist of seven commissioners, three of whom shall be non-citizens and who will be selected by the Panel of Eminent African personalities, that is the Kofi Annan Group and four shall be citizens of Kenya selected by the selection panel in accordance with the procedure I have indicated, which is in the First Schedule. One may wonder why we would want non-citizens in the selection panel. The exercise of a Truth, Justice and Reconciliation Commission is a painful one to any nation. Things are coming forward that have been hidden and buried and information is coming sometimes about people in authority and power. Having come from the rough incidence of the beginning of this year and the mistrust that has characterised our politics, it was agreed that it is necessary to seek for assistance from our friends so that we have non-citizens to sit with us to tamper whatever emotions may be raised by the issues that are put before the Commission and also to minimise the suspicions that the political class and Kenyans in general may have of each other and by extension, of the people we eventually nominate to the panel. This again is not new. That is what is happening in the two commissions we have; the Independent Review Commission on the Elections and also the Waki Commission, where we have a panel set up as citizens and non-citizens. Mr. Temporary Deputy Speaker, Sir, the qualifications of the people to be nominated to the Commission are:- \"(a) three shall have knowledge of and at least 15 years' experience in matters relating to human rights law;\" You will realize that most of the violations that have come to light - and that people may come out - in a Truth and Justice Commission relate to violation of human rights. That is the justification of seeking that, at least, three of the Commissioners shall have experience and knowledge in matters relating to human rights law. \"(b) four shall have knowledge of and experience in forensic audit, investigations, psycho-sociology, anthropology and social relations, conflict management, religion or gender issues.\" Those are all the areas that are envisaged, and where we need expertise for a Commission July 24, 2008 PARLIMENTARY DEBATES 2115 of that nature to be successful. Mr. Temporary Deputy Speaker, Sir, we are not inventing the wheel. Other countries, especially South Africa, have had an experience of a Commission like that and we are relying on what has happened around the Globe and what is thought to be prudent. Mr. Temporary Deputy Speaker, Sir, a commissioner also:- \"(a) is of sound mind; (b) is of good character and integrity; (c) has not in any way been involved, implicated, linked or associated with the perpetrators or supporters of the acts, crimes or conduct under investigation;\" No person can be a judge in their own course. It is expected that such a person:- \"(d) shall be impartial in the performance of the functions of the Commission under this Act and who will generally enjoy the confidence of the people of Kenya\". Mr. Temporary Deputy Speaker, Sir, Section 6 of the Bill states:- \"A Commissioner, once appointed, shall cease active participation in the affairs of any political party or other organization, whether registered or unregistered, propagating partisan views with respect to the work of the Commission.\" That, again, is to protect the independence and integrity of the Commission. Mr. Temporary Deputy Speaker, Sir, the Chairperson of the Commission shall be appointed by the President, but from among the commissioners selected by the Panel. That Chairperson shall have powers like all other chairpersons to preside over the meetings of the Commission, to be the spokesperson for the Commission, and to supervise and direct the work of the Commission. The Commissioners themselves will elect a vice-chairperson, whose role is to work in the absence of the Chairperson which, again, is normal. Mr. Temporary Deputy Speaker, Sir, the tenure of that Commission will be from the date of the appointment to the dissolution of the Commission. The Commission will appoint its staff, including the secretary, who will serve on a full-time basis, and who will be the chief executive of the Commission. Mr. Temporary Deputy Speaker, Sir, like in all other commissions, they will have to take oath to be administered by the Chief Justice. As for the allowances and emoluments, that will be determined as per the normal Government procedures in consultation with the Ministry of Finance and the relevant Ministry. Mr. Temporary Deputy Speaker, Sir, a procedure has been provided on how to fill the vacancies when a commissioner either resigns, dies or is declared bankrupt. It is envisaged that, out of the six people who will have been selected by the selection Panel, only four will be appointed. So, the President will be left with a bank of two names that, in case a vacancy arises out of the four selected by the selection Panel, then that vacancy can be filled by the reservoir of the two left from those recommended by the Panel. If it is among the international commissioners, then the vacancy will be filled by the Panel of Eminent Personalities. The procedure for removal, again, is provided for and it is standard. Mr. Temporary Deputy Speaker, Sir, the hearings of that Commission shall be open. But the Commission shall have powers to direct that such proceedings be held in camera when the security of the perpetrators, victims or the witnesses is threatened, or when it would be in the interest of justice or prudent to do so; or when there is a likelihood that harm may ensue to any person as a result of proceedings being heard in open. That is very critical because there are witnesses, whether victims or perpetrators, who may fear for their safety, unless they are provided with a sitting in camera. That is what is happening even with the two Commissions that are currently ongoing. It is, again, a standard and necessary proposal for the work of that Commission. Mr. Temporary Deputy Speaker, Sir, the Commission will also have powers to establish 2116 PARLIAMENTARY DEBATES July 24, 2008 special units to address issues and to adopt specific mechanisms and procedures to address the experiences of women, children, persons with disabilities and other vulnerable groups as the need may emerge during the hearings. They will also have to adopt mechanisms that will pay particular attention to gender-based violations and provide opportunities for people to relate their experiences. Mr. Temporary Deputy Speaker, Sir, individuals who have been summoned to appear before the Commission will have the right to seek legal representation or to appear with a lawyer. That, again, is standard, so that they may be able to safeguard their interest or rights. The rest of the provisions are for the functioning of the Commission and they are standard. Mr. Temporary Deputy Speaker, Sir, on the issue of amnesty mechanisms and procedures in Part III, it is being proposed in Clause 34 that:- \"The Commission shall not grant or recommend amnesty if the act, omission or offence to which the application relates is an act, omission or offence that constitutes crimes against humanity or genocide within the meaning of international human rights law\". Mr. Temporary Deputy Speaker, Sir, it is provided for; and there is a proposal in this Bill that individuals who wish to appear before the Commission to apply for amnesty may do so. But the proposed Clause 34 clearly indicates that those guilty of gross human rights violations and crimes against humanity as envisaged by international human rights law will not be eligible for amnesty. That, again, is in accord, not only with our Constitution, but with international human rights law to which we are a signatory. Mr. Temporary Deputy Speaker, Sir, Clause 35 indicates that those who wish to apply for amnesty in respect of any acts of omission or offence, must do so within one month from the date the Commission puts an announcement. But the Commission may give an extended period if it so wishes. The procedure for receiving the applications for amnesty is elaborated in the proposed Clause 36. Mr. Temporary Deputy Speaker, Sir, why are we talking about amnesty. Throughout the world where these commissions have been formed there are mechanisms for self expressions and also for justice to be done. There is also an avenue for the country to reconcile. So, the issue of amnesty has to come up so that we do not stay with baggage of old cases whether it is amnesty in relation to economic crimes or violation of human rights that does not amount to gross violations or to any other offence that is within the mandate of this Commission. The Commission will not itself give amnesty but it will be in a position to recommend amnesty, which must then come to the House. When the Commission has recommended amnesty to any person in respect of an act or omission which formed the ground of a civil judgement and which was delivered before granting amnesty, it should not affect the operation of that judgement. But once the Commission has recommended, it will be up to the Government and this House to act on those recommendations and to make the necessary policy and legal framework to facilitate the granting of the amnesty recommendations. The Commission may also recommend reparations and rehabilitations of the offenders. That, again, is covered in Part 1V. In my view, the Act is as comprehensive as it can be and I would urge hon. Members to support it to enable us to embark on the painful but necessary journey of expressing ourselves so that we may know the truth about the issues that have been bringing conflict between us and among us for a long period so that we may then come up with mechanisms of reconciliation and healing and we may be able to become a strong country. With those many remarks, I would urge Members of this House to support the Bill and I beg to move. I urge my colleague from the Serena Team, the Minister for Agriculture to second."
}