Alternatives and Adjuncts to Domestic Prosecutions
© T.M.C. Asser Press and the author 2015
Sosteness Francis MateruThe Post-Election Violence in KenyaInternational Criminal Justice Series210.1007/978-94-6265-041-1_55. Alternatives and Adjuncts to Domestic Prosecutions
(1)
Faculty of Law, University of Dar es Salaam, Dar es Salaam, Tanzania
Abstract
When a country decides to address past human rights violations committed on its territory, it has two options to pursue, namely retributive justice (prosecution) and restorative justice (non-prosecution) mechanisms. However, within the context of so-called “peace versus justice debate”, it is settled that whenever both mechanisms are pursued in a given transition, it is important to ensure that both peace and justice are achieved. This chapter focuses mainly on the Kenyan truth commission as one of the restorative justice mechanisms pursued as an integral part of the agreed domestic road map for accountability for the atrocities linked to the post-election violence. The chapter concentrates only on the aspects of the truth commission that have a bearing on criminal accountability for the crimes against humanity allegedly committed during the violence. It reveals that in view of the structure of the commission’s legal framework, there are both strong and grey areas with the potential of affecting criminal accountability positively or negatively.
5.1 Introductory Remarks
The recent past demonstrates amply that various states implementing transitional justice1 schemes have successfully employed non-prosecutorial mechanisms as alternatives, adjuncts or supplements to prosecution. So far the non-prosecutorial approach to transitional justice has involved a diverse range of options, such as truth commissions, reparations, lustrations, granting of amnesties and traditional dispute settlement mechanisms.2 The decision as to which mechanisms should be utilized always depends entirely on the unique circumstances of the transition itself.
There are three main lessons that can be learned from the past experience of transitional justice arrangements. First, the prosecutorial and the non-prosecutorial mechanisms are not mutually exclusive: they can be pursued simultaneously as complements.3 Second, whereas the main objective of prosecution is to achieve retributive justice i.e. punishment of the perpetrators, the main objective of the non-prosecutorial mechanisms is to achieve restorative justice i.e. reconciliation, restitution, compensation, institutional reforms and restoration of rule of law.4 Third, a proper combination of retributive and restorative justice mechanisms in one transition may lead to better results. For example, a recent study has concluded that more satisfaction is likely to be achieved when a truth commission is used alongside prosecution and amnesty, provided that such a combination strikes a “justice balance”. According to the study, a justice balance is achieved when: (i) the prosecution component is included to underscore zero tolerance for impunity for gross violations of human rights; (ii) the amnesty component, especially in cases of negotiated transitions, is included to enhance political stability; and (iii) the truth-finding component is included to lay bare the past systematic abuses in order to, inter alia, prevent future recurrence.5
In the light of foregoing, it was agreed domestically in Kenya that both prosecutorial and non-prosecutorial mechanisms should be pursued to respond to, inter alia, the atrocities committed during the post-election violence.6 In particular, legal frameworks for four non-prosecutorial mechanisms, namely a truth commission, amnesties, reparations and lustration (vetting of judges and magistrates), were adopted. Whereas amnesties and reparations were pegged to the legal framework for the truth commission, a separate legal framework was adopted for the vetting of judges and magistrates.7
This chapter deals mainly with the truth commission as the main response to the post-election violence pertaining to restorative justice. The framework for the vetting of judges and magistrates is outlined briefly only for purposes of completeness. In order not to drift away from the main theme of this book, which is criminal accountability for the violence, the chapter focuses more narrowly on the aspects of the truth commission with a direct or indirect bearing on criminal accountability for the crimes related to the violence. However, in order to put the discussion in context, the chapter will start off with a brief outline of the background, objectives and main features of the Kenyan truth commission and of the proposed amnesty.
5.2 Transitional Justice in Kenya Through a Truth Commission
5.2.1 Prelude to Truth Commissions
Truth commissions are fact-finding bodies established to investigate past mass atrocities. Their main objective is to clarify and acknowledge the truth about past occurrence of injustice; and document the same, thereby preserving its memory for future generations.8 They also seek to bring about a break with the past human rights violations and promote reconciliation between the perpetrators and the victims, in order to create a sustainable environment for future peace, democracy and political stability.9 They have three specific features: First, they investigate past human rights abuses over a given period. As a result, they are usually not event-specific. Second, they are temporary in nature: they exist only for a pre-determined period of time after which they are dissolved, usually having compiled a report about their findings. Third, they operate strictly according to given mandates that are usually defined by their establishing authorities.10
5.2.2 Introduction to the Kenyan Truth, Justice and Reconciliation Commission
5.2.2.1 Origins
The idea of creating a truth commission in Kenya emerged for the first time after the historic 2002 general elections which saw the Rainbow Coalition ousting the long-ruling dictatorial party (see supra Sect. 2.4.2.2). On 17 April 2003, the Rainbow government appointed the Task Force on the Establishment of the Truth, Justice and Reconciliation Commission (hereafter “Task Force”) and directed it to seek opinions of the citizens on whether a truth commission was needed in Kenya in order to inquire into human rights violations committed under the previous governments.11 The Task Force found that indeed over 90 % of Kenyans were in favour of the creation of a truth commission for that purpose.12
However, as the new government consolidated power, the enthusiasm about the truth commission faded drastically. Apparently, this was due to the fact that most of the politicians in the new government, including President Mwai Kibaki himself, had served in the previous dictatorial regimes. Thus, politically speaking, the “new regime” was made of “recycled” politicians: the same people in a new government. The fear seems to have been that any investigations of the past atrocities and injustices by the truth commission could become a miscalculation, as it would, most probably, end up linking those serving in the new regime or their close allies to the very atrocities. Consequently, the report of the Task Force on truth commission was archived just like the reports of previous similar bodies (see supra Sect. 2.5.3), thereby putting the desire of the Kenyans to have a truth commission in abeyance.
It took five more years for the creation of the truth commission to materialize, thanks to the 2007–2008 post-election violence. This time the idea was resuscitated by the AU-brokered mediation process (see supra Sect. 3.3), being part of the broad objectives of agendas two and three in the mediation process. These agendas sought to seek ways to address issues relating to promotion of the reconciliation, healing and restoration, and also how to look for lasting solutions for the long-term grievances and other pertinent issues that had until then not been resolved in Kenya. On 4 March 2008, the parties to the mediation process agreed on the immediate establishment of a truth commission for these purposes.13 Consequently, the commission was established pursuant to the Kenyan Truth, Justice and Reconciliation Commission Act of 2008 (hereafter “TJRC Act”).14
5.2.2.2 Objectives
In its Preamble, the TJRC Act started by acknowledging that gross violations of human rights, abuse of power and public office had happened in Kenya since independence in 1963. It stated that the climax of such violations was the post-election violence of 2007–2008.15 The Parliament therefore resolved to establish the Kenyan TJRC as a “free reconciliatory forum”—a “platform for non-retributive truth telling” where the victims’ voice would be heard and their dignity restored, and where the perpetrators’ actions would be confessed.16 To achieve this broad objective, the TJRC Act required the commission to conduct public hearings in all cases except in three circumstances, namely: (i) where a public hearing would be against the interests of justice; (ii) where the hearing would endanger the security of perpetrators, victims and witnesses; or (iii) where, as a result of public proceedings, “harm” could occur to “any person”.17
5.2.2.3 Composition and Independence
The TJRC was a mixed commission composed of nine members, six Kenyans and three non-Kenyans, who were appointed on 22 July 2009.18 While the Kenyan members were appointed by the President after undergoing a domestic vetting process, the international commissioners were appointed after being nominated by the African Panel of Eminent Personalities.19
The TJRC’s independence was guaranteed under section 21 of its legislation, which provided that the commission would “not be subject to control or direction of any person or authority”.20 The Act further required that in performing their duties, the TJRC’s commissioners and members of staff had to do so “in their individual capacity, independent of political parties, the government, or other organizational interests, and that they must avoid taking action which could give an impression of partiality or otherwise harm the credibility or integrity of the Commission”.21
5.2.2.4 Mandates
5.2.2.4.1 Temporal Mandate
The temporal mandate of the TJRC was defined very broadly, in order to enable it establish as “accurate and complete” historical record of all the violations as possible.22 This mandate covered a time frame of 45 years, extending from 12 December 1963, the date on which Kenya obtained independence, to 28 February 2008, the date on which the agreement bringing the post-election violence to an end was signed.23 But, by virtue of section 5(a) of the TJRC Act, the commission was allowed to even go beyond the 45 years by investigating the “historical antecedents” of the violations where necessary. In this regard, the TJRC later indicated that indeed it had to investigate the pre-independence colonial period in order to understand the context of the post-independence injustices, specifically those related to land.24
5.2.2.4.2 Subject-Matter Mandate
The subject-matter mandate of the commission covered two categories of crimes. The first category was broadly described as “gross human rights violations and violations of international human rights law”.25 This formulation meant that any act or omission that could constitute a violation of “a fundamental human right” fell within this category, and this included crimes against humanity and genocide. Other specific violations of human rights which were expressly included under this category were: (i) torture; killing; abduction; severe ill-treatment; (ii) imprisonment or deprivation of physical liberty; (iii) rape and other forms of sexual violence; (iv) enforced disappearances of persons; (v) persecution against an identifiable group or collectivity on political, racial, national, ethnic, cultural, gender or other ground; and (vi) expropriation of private property.26
The second category of crimes which the TJRC was mandated to investigate was that of “economic crimes”. This included “economic rights violations”, such as grand corruption, exploitation of natural or public resources and “irregular” or illegal acquisition of public land.27
For both categories of crimes—economic crimes and gross violations of human rights—the TJRC was tasked with looking into, inter alia, the context, causes and circumstances under which the crimes occurred, and to identify the individuals, institutions, state and non-state actors responsible for such violations, and the victims.28 Thus, impliedly, the commission could include in its final report the names of persons allegedly responsible for the atrocities and violations it had investigated.
The inclusion of economic crimes in the subject-matter mandate of the TJRC goes beyond the traditional focus of investigations of the “first generation” of truth commissions which concentrated on the violations relating to political and civil rights. Recently, there has been a rising trend that seeks to respond to the increasing need for truth commissions to suit the local contexts of the transition in question. The mandate of the Kenyan TJRC on economic crimes is reflective of this trend, and is welcome. It takes cognisance of the fact that in this particular transition, there was a nexus between the violations of political and civil rights on the one hand and socio-economic rights on the other hand. The Liberian and Indonesian truth commissions, too, had a similar mandate, which included, for example, looking into corruption.29
However, it is beyond the scope of this book to discuss the mandate of the TJRC with regard to economic crimes. Rather, the focus is limited to the category “gross violations of human rights”, and more narrowly to only the atrocities linked to the 2007–2008 post-election violence.
5.2.2.5 Final Report and Credibility Issues
5.2.2.5.1 Final Report
The TJRC legislation required the TJRC to prepare and submit a final report to the President.30 It also required the commission to include in the report findings and recommendations on, among other things, prosecution of individuals implicated in the violations investigated, and a proposal on the mechanism and framework for the implementation of all its recommendations.31 In addition, the law further required that the commission must publish its report immediately after submitting it to the President, and that the report must be tabled in Parliament within 21 days following such publication.32 The report of the commission was handed over to the President on 21 May 2013, and was officially published on the same date.33
Furthermore, according to the TJRC Act the implementation of the TJRC report was supposed to commence within 6 months upon its publication. To this end, the Minister of Justice was put under an obligation not only to operationalize an “implementation mechanism”, but also to submit bi-annual reports to the National Assembly concerning the implementation of the recommendations of the commission. If any of such recommendations was not implemented, the Minister was required furnish reasons for non-implementation.34 In addition, section 49(2) of the TJRC Act provided for the creation of an “implementation committee” to, inter alia, evaluate the “efforts” of the Government to implement TJRC’s recommendations and submit quarterly reports “to the public” about its evaluation.
By June 2014, 1 year after the publication of the TJRC’s report, there was no talk in Parliament or any commitment from the Kenyan government regarding the implementation of the report. Among the citizens, there was no optimism that the report would ever be implemented fully. In fact, there were indicators already that any attempt to implement the report fully would be faced with enormous political and legal obstacles, as the political elite were already unhappy about the commission’s findings.
At this juncture, a few issues pertaining to the credibility of the commission and its report are also worth highlighting before moving to the critical aspects of the commission that have a bearing on the criminal accountability for the post-election violence.
5.2.2.5.2 False Start and Credibility Question
The TJRC was inaugurated in July 2009, and was given 2 years within which to finalize its operations, with a possibility of a six-month extension by Parliament. This is besides a three-month period given to the commission after its inauguration to prepare itself for the commencement of operations.35 Therefore, going by the strict timelines specified above, the TJRC was supposed to commence its operations officially by November 2009, and if one includes an extension of 6 months, the operations of the commission ought to have been finalized not later than May 2011. However, these strict timelines were not met. The main reason for the delay was a long controversy which arose with respect to the TJRC’s chairperson, Ambassador Bethuel Kiplagat. Several revelations that emerged subsequent to his appointment put to question his personal credibility and suitability to serve in the commission.36 The controversy started when Kiplagat was implicated in three areas of atrocities that fell within the mandate of the TJRC. These were the assassination of Kenya’s former minister of foreign affairs, Robert Ouko, in 1990; a notorious massacre (Wagalla massacre) of 1984; and a corruption scandal related to land transactions occurring in 1988.37
While Kiplagat strongly denied any wrongdoing38 and refused to resign voluntarily, the rest of the TJRC commissioners refused to work under his chairmanship unless he was first “cleared”. They feared, reasonably so, that doubts about the credibility of their chairperson would reverberate as questionable credibility of the commission itself, including its final report. Thus, the TJRC commissioners (excluding Kiplagat) jointly petitioned the Chief Justice of Kenya, requesting him to appoint a tribunal pursuant to section 17 of the TJRC Act, which laid down the grounds for removal of a TJRC’s commissioner from office, “to inquire into the question of the removal of the TJRC’s Chairperson” on grounds of “misbehaviour or misconduct”.39 Thenceforth, both legal and political “battles” ensued, entailing, inter alia, a number of court cases.40 After long hesitation on the part of the Chief Justice, the tribunal was finally formed in November 2010, and was directed to inquire into claims that Kiplagat’s past conduct “erode[d] and compromise[d] his legitimacy and credibility” to chair the TJRC.41 Kiplagat reluctantly stepped aside to allow these investigations to take place.42 However, the tribunal could not finalize its task due to yet more legal battles; no decision was rendered.43 Following a judicial review application, the High Court of Kenya ruled eventually that even the Chief Justice had no powers under section 17 of the TJRC Act to order an inquiry into the said “past conduct” of Kiplagat. This ruling paved the way for Kiplagat to return to the TJRC. Upon returning, Kiplagat indicated explicitly that he came back to the commission “to shape the final report”.44 This left the substantially crucial question of his suitability and credibility unanswered.
The above-mentioned wrangles led to the following outcomes: (i) The Vice Chairperson of the TJRC Betty Murungi resigned from the Commission. Another commissioner (American) threatened to resign because he had “lost faith” in the ability of the TJRC “to fulfil even a small part of its mandate”45; (ii) the Parliament issued an ultimatum threatening to disband the Commission if the commissioners “did not resolve their differences”46; and (iii) the Commission lost 1 year without operations.47 As a result, when its operations resumed, the TRC had to request the Parliament for the extension of its life for 6 months to the end of 2011.48 However, further extension was granted, following the amendment of the TJRC Act in 2012, to enable the Commission finalize its report.49
5.2.2.6 Interim Conclusion
Despite the false start, the TJRC nevertheless embarked successfully on its operations. Against all odds, it was able to visit all the 47 counties in Kenya and received testimonies of about 40,000 people.50 In order to enhance the credibility of its final report, the Commission ensured that the controversy about its chairperson was documented in a very detailed manner in the final report. Then the Commission provided the assurance that Kiplagat had been strictly denied any influence or opportunity in the drafting of the parts of the report dealing with the violations to which he had been implicated.51
5.2.3 Analysis of TJRC’s Mandates Vis-a-Vis Criminal Accountability for the Post-Election Violence
When a truth commission and prosecution operate simultaneously or successively as accountability mechanisms responding to the same atrocities, a regulation of their relationship is very crucial; the reason being that an overlap between the investigations conducted pursuant to the two mechanisms is almost guaranteed. Usually such an overlap gives rise to certain difficulties and challenges for which only a careful and proper coordination can make the two mechanisms operate smoothly, harmoniously and effectively.52 Schabas and Darcy rightly capture these challenges as “the tension between criminal justice and the search for truth”.53
Three institutions, namely the TJRC, national courts and the ICC have, at different levels and degrees, investigated or prosecuted the crimes related to the post-election violence in Kenya. Considering their overlapping mandates, it is very likely that two of or all the three institutions may have handled, are handling, or will have to handle the same individuals or information. This overlap is inevitable due to the fact that the investigations have most likely involved or will involve the same perpetrators, victims, witnesses and, more importantly, same pieces of evidence. This elicits the pertinent question whether in this situation the legal framework adopted in Kenya provides for a proper coordination of this multifaceted approach to justice. The incidental question is whether any challenges could arise in the future in the absence of such coordination.
When the Kenyan TJRC legislation was still at a bill stage, Amnesty International published a “constructive critique” of the bill in which four “problematic aspects” of its proposed legislation were identified. The critique raised the concern that the relationship between the envisioned TJRC and the Kenyan national courts was not clearly articulated in the bill, and that this had the potential of affecting negatively the search for criminal accountability for the crimes to be investigated by the commission, including those linked to the post-election violence.54 Similarly, the Multi-Sectoral Task Force on the Truth, Justice and Reconciliation Process, an umbrella body of Kenyan civil society organisations, identified several “manifest weaknesses” in the bill and proposed its amendment before it became law.55 Concerns were raised with regard to four uncoordinated or unclear aspects in the TJRC bill that had the potential of affecting criminal accountability during or after the TJRC’s investigations. These aspects pertained to: (i) the type and nature of the crimes that the TJRC and the national courts were empowered to investigate; (ii) the mandate of the TJRC to recommend prosecution in national courts; (iii) the mandate (or lack thereof) of the TJRC to grant amnesty; and (iv) information sharing between the TJRC and the national courts and the national investigative and prosecutorial authorities.
Despite the concerns raised by Amnesty International and other commentators, some of the “problematic” aspects of the bill remained unchanged in the text of the TJRC Act which was finally passed by Parliament. The following discussion will make a critical analysis of these aspects, clearly indicating how they could affect criminal accountability for the post-election violence.
5.2.3.1 Nature and Scope of Crimes in the TJRC Act
Of the four core crimes under international law, the TJRC was empowered to investigate genocide and crimes against humanity as such. The TJRC legislation defined these two crimes specifically for purposes of the TJRC’s investigations. In this regard, both similarities and discrepancies can be noted between some aspects of the definitions in the TJRC Act and the definitions of the same under the domestic laws of Kenya and under international law. For example, like the ICC Statute, the definition of crimes against humanity in the TJRC Act contained two parts: the individual acts (material elements) and contextual elements. As regards the individual acts, the Act included the same acts that one finds under Article 7(1) of the ICC Statute as also replicated in section 4(2)(a) of Kenya’s International Crimes Act of 2008, except for the crime of apartheid which was not provided for in the TJRC Act. As regards the contextual elements, the TJRC Act only required that for the individual acts to amount to “crimes against humanity” they must have been committed as part of a “widespread or systematic attack directed against a civilian population with the knowledge of the attack”.56 The fact that the TJRC Act did not require the attack to have been committed “pursuant to or in furtherance of a State or organizational policy” means that, for purposes of its investigations, the TJRC was required to apply the definition of crimes against humanity under customary law, which definition is narrower than the definition found in the Kenya’s International Crimes Act of 2008 (see supra Sect. 4.3.2.2.2 and infra Sect. 6.4.2.2). Consequently, this gave rise to two potentially disharmonious definitions of crimes against humanity in Kenya. Questions that arise are: How and why did such discrepancy arise; and what implications might it have?
The afore-mentioned discrepancy is directly traceable to the mediation process carried out pursuant to the post-election violence (see supra Sect. 3.3). As already shown, three proposals emerged out of this process, namely: (i) the creation of a special tribunal for Kenya; (ii) the fast-tracking of the domestication of the ICC Statute; and (iii) the establishment of the TJRC. This is the reason why even the legislative processes in respect of implementation of each of these three proposals commenced immediately after the mediation talks, and proceeded concurrently. As a result, the bill for the Special Tribunal for Kenya was drafted and given a retroactive effect to specifically address the crimes committed during the post-election violence; the International Crimes Act of 2008 was enacted and given prospective applicability to cater for future eventualities of crimes; and the TJRC Act was enacted specifically to provide for a framework for investigations pertaining to truth-seeking.
A closer look at the TJRC Act suggests that this legislation never intended to provide a comprehensive legal framework on which the charges for the atrocities investigated by the TJRC, including the crimes committed during the post-election violence, would be based. This can be inferred from three features that can be deduced from the Act. Firstly, although the TJRC Act gave the TJRC the powers to recommend prosecutions (see infra Sect. 5.2.3.3), it did not specify whether or not such prosecutions must be based on the Act itself. Secondly, although the Act enumerated crimes which constituted “gross human rights violations”, it did not define or impose any penalties, nor did it expressly confer criminal jurisdiction on the Kenyan domestic courts in respect of those crimes. Thirdly, and more importantly, apart from “genocide”, “crimes against humanity” and “enforced disappearance of persons”, the TJRC Act did not at all define the other specific criminal acts enumerated therein, such as torture, persecution, deportation, severe ill-treatment, etc.; it only mentioned the crimes and stated that they constituted “gross violations of human rights” for purposes of TJRC’s investigations.
Therefore, by not defining all the crimes exhaustively and by not defining penalties or expressly establishing criminal jurisdiction for the domestic courts in the TJRC Act, the Kenya Parliament envisioned an implicit arrangement whereby the prosecution of the atrocities investigated by the TJRC would be done on the basis of domestic legislation other than the TJRC Act. The thinking appears to have been that the charges of those atrocities with a nexus to the 2007/2008 post-election violence would be based on the Special Tribunal for Kenya Act and be prosecuted by the envisioned Special Tribunal for Kenya (see supra Sect. 3.5), while those atrocities without any link to this particular violence would be charged under the Kenyan Penal Code and thereby be prosecuted in the Kenyan ordinary courts.
The foregoing can be the only logical and reasonable explanation as to why, for instance, in terms of the definitions of the core crimes, the TJRC Act was made to be more consistent with the proposed law for the Special Tribunal than with the Kenya’s International Crimes Act of 2008. This is true with respect to the contextual elements of crimes against humanity, according to which the drafters made sure that the definition in the TJRC Act and that in the bill for the Special Tribunal for Kenya were substantially the same, as they both adopted the customary law definition. In addition, the same individual acts which were enumerated but not defined in the TJRC Act were defined exhaustively in the proposed law for the Special Tribunal.57
Thus, even though it was not stated explicitly anywhere in these pieces of legislation, one can still infer an implicit effort or a plan to create a relationship between the proposed Special Tribunal for Kenya and the TJRC. Such a relationship would have been symbiotic in nature. However, for this arrangement to have succeeded, it was imperative that both institutions materialized. Unfortunately, as already shown (see supra Sect. 3.6), the proposed Special Tribunal for Kenya was blocked by Parliament for political reasons.
Therefore, the fact that the TJRC materialized while the Special Tribunal did not materialize disturbed the implicit original plan for addressing criminal accountability for the crimes in question in a more co-ordinated manner. This fact, which has not received any attention so far, may give rise to several challenges in future. One such challenge could arise in relation to prosecutions recommended by the TJRC after having formed an opinion that certain conduct it investigated amounts to “crimes against humanity” pursuant to the TJRC Act. It is now clear that since the proposed Special Tribunal did not materialize, such prosecutions will have to be conducted by the ordinary courts. In this regard, the following three points are worth reiterating for domestic prosecutors to take note of specifically with regard to crimes against humanity.
First, already shown in the previous chapter, it may not be possible to bring the charges on the basis of the definition in the International Crimes Act of 2008 unless the Act is amended. Second, it is unlikely that the ordinary courts will allow charges to be brought on the basis of customary international law in view of the reluctance of domestic courts to rely directly on customary law. Third, the best solution in this situation is to disregard and avoid the label “crimes against humanity” and charge the conduct as “ordinary crimes” under the Kenyan Penal Code, thereby circumventing the intricacies or challenges relating to retroactivity or the policy element in crimes against humanity. This, as already shown, is the de facto approach so far taken in Kenya, even before the creation of the TJRC, and is likely going to remain the most convenient approach for the domestic prosecutors and the courts. A challenge that could arise in this respect is that some conduct such as “enforced disappearances”, which has been investigated by the TJRC, and which clearly constitutes gross violations of human rights under international law, may fail to be captured in the available domestic ordinary crimes.58 However, this will not affect criminal accountability for the crimes related to the post-election violence per se, as no enforced disappearances were reported.
As regards the crime of genocide, the definition in the TJRC Act was largely consistent with the definitions in the Genocide Convention, the ICC Statute and Kenya’s International Crimes Act of 2008. The only discrepancy in this regard is found under section 2 of the TJRC Act which replaced the act (conduct) of “forcibly transferring children of the group to another group” under Article 6(e) of the ICC Statute with “forcibly transferring children of the group from one place to another” place. It is not very clear why this replacement was considered important in relation to the TJRC’s investigations. In addition, it is difficult to figure out how, in view of the replacement, the mere physical transfer of children of a group “from one place to another place” (within Kenya) would satisfy the dolus specialis requirement for the crime of genocide, namely the specific intent to destroy a protected group in whole or in part. Interestingly, the same ambiguity would have been found in the law for the Special Tribunal for Kenya had its bill been passed into law.59 However, irrespective of the implication this provision has or may seem to have, and whatever the purpose it was meant to serve, it may not be of much concern here, given the conclusion (supra Sect. 3.4.3.1) that no genocide happened in Kenya
5.2.3.2 Powers to Recommend Amnesty
5.2.3.2.1 Procedure for Proposed Amnesty
The TJRC had the mandate to recommend the granting of amnesty to “any person” for “any act or omission” it investigated,60 but it decided not to utilize this mandate. However, this does not preclude an evaluation of the structure and scope of the amnesty proposed in the TJRC Act. In doing so, the justification for TJRC’s decision not to utilize this specific mandate will be identified.
While the law was clear that the amnesty would have followed three procedural steps, the authority that would have been responsible for ultimately granting the amnesty cannot be clearly identified. The first step towards the amnesty would have been an application made in a prescribed format.61 As a second step, upon receipt of the application, the TJRC would have had two options, namely to accept or reject the application forthwith; or to conduct “a hearing for amnesty” before deciding on the application.62 The third step would have come into play if the applicant qualified for amnesty. In this regard, the TJRC was required to make a recommendation for amnesty to the Attorney–General, and thereby proceed to gazette the names of the persons recommended for amnesty.63 In these three procedural steps, the right to legal representation would have been availed to the applicants.64
5.2.3.2.2 The Unclear Role of the Attorney-General
As indicated above, the TJRC’s mandate was merely to recommend to the Attorney-General (AG) the granting of amnesty to the applicants who qualified. This is a grey area whose intention raises suspicion. In plain English, the power to recommend amnesty is not the same as the power to grant amnesty. In this regard, the TJRC Act was not clear about the role of the AG in the amnesty process—whether or not, upon receipt of such a recommendation, the AG would have been the ultimate authority to grant amnesty. The law was silent as to whether the AG had powers to reject a TJRC’s recommendation for amnesty. Similarly, the Act remained silent as to whether the TJRC’s publication (gazetting) per se of the names of the people recommended for amnesty would have amounted to the granting of amnesty.65
It was agreed during the mediation process that the TJRC’s recommendations would be made to the President.66 This suggests, therefore, that the mediators envisioned that the ultimate mandate to receive recommendations for amnesty and grant the same would be vested in the President. But the TJRC Act did not provide so. It cannot be argued or assumed that the mandate was subsumed in the presidential prerogative power of mercy. The reason is that while the prerogative power of mercy (pardon) only enables the beneficiary to have his sentence (not criminal liability) expunged or reduced, amnesty absolves the beneficiary from criminal liability.67
Perhaps the AG was linked to the proposed amnesty process because of his prosecutorial role under the existing Kenyan Constitution. The TJRC Act made the AG an ultimate receiver of the recommendation for amnesty probably in order for him not to feel that his constitutional authority had been abrogated with regard to the crimes in question.68 However, the involvement of the AG in this regard created room for potential abuse or politicization of the amnesty process, given that his role in the process was not clearly defined. The fear of politicization emerges because, pursuant to Kenya’s 2010 Constitution (under which the TJRC finalized its operations), the AG is not only a political appointee of the President, but also a member of the cabinet by virtue of his position.69 Therefore, to minimize actual or perceived politicization and give more credibility to the amnesty process, it would have been more prudent if the mandate to grant amnesty was vested expressly and exclusively in the TJRC itself as the case was with the South African Truth and Reconciliation Commission.70
5.2.3.2.3 Conditional Amnesty
Kenya had the idea to put in place an amnesty regime modelled partly around that of the South African Truth Commission.71 Consequently, although the Kenyan TJRC had the mandate to recommend the granting of amnesty to “any person” in respect of “any act or omission”, no absolute or blanket amnesty would have been recommended. The law imposed a general condition on the applicant for amnesty to make a “full disclosure of all relevant facts” about the act, omission or offence in respect of which amnesty was applied.72
Even upon a full disclosure, the decision to grant or not to grant amnesty would have further depended on the following additional conditions: (i) the motive of the perpetrator when he committed the act; (ii) the context of the act; (iii) the legal or factual nature of the act, including its gravity; (iv) the objective of the act—whether it was primarily directed at a political opponent or state property or personal or against private property or individuals; (v) whether the act was committed in execution of an order or on behalf of or approval of a organization, institution, liberation movement or body of which the perpetrator was a member; and (vi) the relationship of the act with the political objective pursued.73
However, one aspect about the amnesty provisions is that the Kenyan law failed to be as precise as that of the South African Truth and Reconciliation Commission. The specific criteria for amnesty under provisions of section 38(3) of the Kenyan TJRC Act outlined above are far from clear. For example, paras a and c of section 38(3) only mentioned the “motive” and “objective” of the perpetrator to be among the factors that would have been taken into account in determining whether or not an act, omission or offence qualified for amnesty. Similarly, para f of the same provision added in particular that the “political objective” of the act, omission or offence would have been another criterion.74 However, unlike the South African Truth and Reconciliation Commission, the Kenyan TJRC was not given any guidance as to what “political objective” and “motive” would have been determined. In particular, the TJRC Act did not stipulate what kind of motive or objective with which the act, omission or offence should have been committed in order for it not to qualify for amnesty. Unlike the Kenyan legislation, the legislation establishing the South African Truth Commission explicitly stated that, apart from the condition of “full disclosure”, only acts committed or omissions “associated with a political objective” were eligible for amnesty.75 In addition, the South African law went further to define and set out clearly the parameters of what constituted acts “associated with a political objective”.76
Thus, the conditions for the proposed amnesty in Kenya were unclear and insufficiently explained in the law. If the TJRC had decided to grant amnesty, it would have inevitably adopted its own specific criteria from the general “political objective” criteria given in the legislation.77 But even so, the considerations in the following sections would have played a clearly significant role in the amnesty process.
5.2.3.2.4 Crimes not Eligible for Amnesty
As shown in Sect. 3.2, almost all the attacks and retaliatory attacks committed during the post-election violence in Kenya were motivated by two closely related factors, namely political and ethnic objectives. If one assumed that all the crimes “associated with a political objective” were to qualify for amnesty without having to meet further criteria, and in the absence of a clear definition of a “political objective”, then perhaps almost all criminal acts committed during this violence would have qualified for amnesty under the TJC Act.
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