Thursday, October 22, 2009

Kenya: Creating Space for the TJRC, 1970 Indemnity Law To Be Repealed

In an earlier post, I wrote that the TJRC has many obstacles in its path. In particular, I mentioned that the 1970 Indemnity Act, which in effect grants amnesty for alleged crimes committed by Kenyan forces in the 1960s, is perhaps one of the highest hurdles that has to be breached. Although the TRC has jurisdiction to investigate human rights violations between 1963-2008 and to make recommendations, the Indemnity Act would bar the TJRC from inquiring into crimes between 1963-1967 in certain geographical areas (the whole of North Eastern Province and some Districts in Coast Province).

Enacted in 1970, the Indemnity Act grants individuals amnesty from prosecution for gross human rights violations (potentially crimes against humanity) and related atrocities linked to the suppression of secessionist and other irredentist forces (during the 'Shifta War') in the former Northern Frontier District between 1963-1967. The Act also bars residents of Isiolo, Marsabit, Tana River and Lamu Districts and the entire North Eastern province that could have suffered violations from seeking compensation in any court, tribunals or commissions.

In its relevant parts, the Act provides as follows:

3.(1) No proceeding or claim to compensation or indemnity shall be instituted or made in or entertained by any court, or by any authority or tribunal established by or under any law, for or on account of or in respect of any act, matter or thing done within or in respect of the prescribed area (see plaves listed above) after the 25th December, 1963, and before 1st December, 1967, if it was -

(a) done in good faith; and

(b) done or purported to be done in the execution of duty in the interests of public safety or of the maintenance of public order, or otherwise in the public interest,

by a public officer or by a member of the armed forces, or by a person acting under the authority of a public officer or of a member of the armed forces.

(2) If any proceeding or claim such as is referred to in subsection (1) of this section has been instituted before the commencement of this Act, it shall be discharged, subject in the case of proceedings instituted before the 1st June, 1969, to such order as to costs as the court may think fit to make.

Although the Act does not seem to prevent the TJRC from making an inquiry (it prevents 'the taking of proceedings', which I understand to mean suing for compensation or commencing a criminal case), it would prevent the TJRC from making recommendations that touch on either the criminal or civil liability of alleged perpetrators. The question is, what is the use of finding out who did this or that, and not be able to recommend ways of remedying the wrong? Clearly, the TJRC's hands would be unduly tied before it begins its task.

On a positive note, it appears that the TJRC will have early respite, and an 'easy way out'. Nominated MP Mohamed Abdi Affey has reportedly drafted a Bill seeking to repeal the Indemnity Act. This carries through a motion that was adopted by the Eighth Parliament (proposed by Wajir West MP Aden Wehliye Keinan) to repeal the law. However, time lapsed without a Bill being presented to Parliament.

It is important that this Bill passes into law for at least three main reasons.

First, it would ensure that the TJRC does not have a 'fragmented mandate' in the sense that it is prevented from inquiring into an important period - and for many one of the darkest periods - in Kenyan history.

Secondly, it insulates the TJRC by ensuring that it is not susceptible to attacks on grounds of unconstitutionality, which would have serious repercussions. Importantly, it seals an important hole likely to be exploited by the enemies of justice - either by the TJRC or any body - who would prefer obscurity rather than clarity.

Thirdly, it generates legitimacy for the TJRC from a large constituency in Kenya who have yearned for the truth for years and who have expressed a sense of disillusionment recently because 'they don't feel that the TJRC Commissioners understand their issues sufficiently'. If it is not doing so already, the TJRC should get behind this initiative by the MP. In a sense, the Bill would go a long way in completing the TJR Act and eliminating one major headache for the Commission. The TJRC loses nothing - and I believe gains more by showing that it is serious about the business of doing justice. However, a quieter behind-the-scenes 'lobbying' could be preferred.

As far as I am concerned, the legal framework within which the TJRC is to function - if effectiveness and constitutional integrity of the process is to be achieved - remains incomplete. The TJR Act must be seen as a broad framework that needs work - either through additional legislative enactments such as the proposed Bill or through a set of internal rules and regulations. In brief, there are a few more holes to be plugged. I will address some of these in my next post.

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