Kenya Denies Justice to Victims of State Abuse

By Khalifa Hemed
Published December 11, 2019

Kenya has blocked justice and reparations for victims of human rights violations.

A coalition of human rights organisations comprising International Center for Transitional Justice, Human Rights Watch, Kenya Human Rights Commission, The National Victims and Survivors Network, Grace Agenda, Center for Memory and Development, and Wangu Kanja Foundation accuses Kenya’s Parliament of deliberately withholding justice, medical and psychological help, compensation, and other redress from the government to victims of injustice.

By failing to consider the findings of a report by the country’s Truth, Justice, and Reconciliation Commission (TJRC) of 2013, the rights watchdogs argue in a joint statement issued in Nairobi on December 10, 2019, Kenya’s National Assembly has blocked justice and reparations for victims of human rights violations.

“Kenya’s transitional justice process started after the contested 2007 presidential elections sparked mass violence, resulting in the deaths of at least 1,133 people, destruction of homes and properties, sexual and gender-based crimes, and forcible displacement of thousands of people. Two transitional justice mechanisms were created: a truth, justice, and reconciliation process, which led to the creation of the commission, and ultimately, proceedings before the International Criminal Court (ICC). Both processes have failed to ensure justice and redress for victims of serious crimes, and impunity and suffering prevail,” the coalition says.

The TJRC, which examined a wide range of abuses and injustice since independence up to the 2007-2008 political violence period, made a wide range of recommendations aimed at accountability and reconciliation to heal historical injustices in Kenya. It proposed various forms of reparations for victims and a reparations policy framework, and recommended that the National Assembly develop guidelines to carry them out. The commission presented its final report to President Uhuru Kenyatta on May 21, 2013.

“Under Kenya’s 2008 Truth, Justice, and Reconciliation Act (TJR Act),” the human rights groups contend, “implementation of the recommendations was to begin immediately after the National Assembly considered the report. However, the National Assembly has, for more than six years now, failed to adopt the TJRC Report and put in place a mechanism to undertake implementation of its recommendations, said the seven organizations.”

Moreover, the organisations say, “Kenya’s National Assembly has also made legislative changes that undermine the effectiveness of the transitional justice process. In December 2013, in a move widely criticized by Kenyans as an attempt to undermine truth telling, justice, and reparations for victims, the National Assembly amended the 2008 TJR Act, giving themselves the authority to determine if, when, and how the recommendations would be carried out. The amendment also removed timelines for carrying out the recommendations. Since then, the National Assembly has effectively stalled adoption of the report.”

While Kenyan courts have issued judgments in favor of the victims in the Nyayo House torture cases and awarded damages to victims, the government has failed to honour a large number of the payments ordered by the courts, and there are no effective mechanisms to compel the state to pay. Even when damages are paid, there are concerns that the amounts awarded are insufficient compared to the harm suffered by victims. As a result, victims remain at the mercy of the good will of the government to receive what is their right under Kenyan and international law, the groups said.

Kenyan courts have also been slow in addressing harm suffered by victims. At least three constitutional petitions seeking state recognition and reparation for victims of the 2007-2008 elections violence have been pending in court since 2011. These include cases filed by victims of elections-related sexual violence, displacement, and police shootings/extra-judicial killings.

In March 2015, President Kenyatta acknowledged the human rights violations documented by the TJRC, offered an official apology to all victims of past injustices in Kenya, and established a Restorative Justice Fund to offer reparations to victims, as recommended by the commission. But in another blow to victims, the money has not been paid because a draft reparation policy and draft regulations prepared by the Attorney General’s office in 2017 have not yet been adopted.