Truth, justice and reconciliation

 Seeking truth and justice for Kenyans

"We were still sleeping on the sand. The sun was hot. We were not wearing any clothes, we were not given food or shelter. They continued beating and hacking us using knives, pangas and rungus. This went on throughout the night. At night, soldiers could use big stones to beat us. I remember somebody called Mohammed Jilo who is well known in Wajir. He asked them, why they were playing with us. Are we not Kenyan citizens? Why are you doing this to us? Are you not Government soldiers? Are you not Africans like us? Why are you mistreating us? Two soldiers took a very big stone and started beating him. The man was smashed on the ground."

--    Testimony about the 1984 Wagalla Massacre

By Professor Ron Slye

I was looking for a challenge. I am tenured and had been at Seattle University for a dozen years (by far the longest I had ever been in the same job; the record previously had been a quarter of that amount). I enjoyed teaching, and had been able to pursue my international interests with the support of the law school and the university. I was beginning to fear, however, that the pleasant rhythm of the academic year was lulling me into complacency. I was ready for a challenge, and I certainly got one.

I spent the last three years serving on the Kenyan Truth, Justice and Reconciliation Commission. Our work was at times emotionally draining and politically charged, but it was also groundbreaking, and, I hope, will be healing for the thousands who have suffered unspeakable horror and incredible loss.

The first inkling of the opportunity arrived in the form of an email that I received through Facebook. The email was from a woman I did not know (she was not a friend or acquaintance in the real sense, nor was she a friend in the Facebook sense). She introduced herself as working for Kofi Annan, the former UN Secretary General, in Nairobi. She informed me that Kenya was in the process of establishing a truth and reconciliation commission, and wondered if I would be interested in being considered for one of the three international commissioners. If so, I should send to her my CV. Without much thought, I promptly did so.

In December 2007 Kenyans had gone to the polls to participate in that country's fourth national multi-party elections. The incumbent, Mwai Kibaki, had been elected in 2002 under a broad reform agenda (Kibaki had served at significantly high levels in all Kenyan governments since independence in 1963, and thus was a reform candidate from inside government). The promise of 2002 was short-lived, as it became apparent that the new reformist government would be as reluctant as its predecessors to combat corruption and usher in the reforms necessary to establish a robust democracy that protects the fundamental rights of its citizens. (The circumstances leading to this disillusionment are ably recounted in Michela Wrong's excellent book, "It's Our Turn to Eat.") Raila Odinga, who had joined forces with President Kibaki in 2002 on the reformist ticket, was the challenger.

There was a dispute concerning who won the election, and in a much-criticized move, the chief justice administered the oath of office to Mwai Kibaki in an unprecedented midnight ceremony amid calls of fraud. The government immediately ordered a news blackout and mobilized the security forces. The situation quickly deteriorated into violence, with more than 1,000 people killed, tens of thousands assaulted and raped, and hundreds of thousands displaced. Many feared that Kenya was about to witness a Rwanda-style genocide. It was, according to an independent commission of inquiry, "by far the most deadly and the most destructive violence ever experienced in Kenya."

The African Union set up a panel of experts to facilitate negotiations to end the violence. The result was an agreement between the two disputing parties to create a coalition government with Mwai Kibaki retaining the office of President, and Raila Odinga occupying a newly created position of Prime Minister. The agreement, known as the National Accord, also committed the government to a series of reforms. One commission of inquiry was established to investigate the post-election violence and to identify those responsible. Another commission as established to investigate the election, recommend electoral reforms, and to identify the winner of the election if possible.

Professor Ron Slye listens to fellow Commissioners, Professor Tom Ojienda and Tecla Namachanja Wanjala, vice chair of the commission.

A committee was established to draft a new Constitution that would bring Kenya into the family of countries with constitutions that encompass the broad range of human rights protections recognized under international law. A permanent commission was established to oversee the broad project of promoting national cohesion and integration - a crucial task in a country with more than 40 recognized ethnic groups and with a history of ethnic tension and conflict that, in the worst of times, such as the 2007 elections, has erupted into near genocidal killings and related atrocities.

Finally, the National Accord directed that a truth, justice, and reconciliation commission be established to look at the broad history of human rights violations in Kenya from independence (Dec. 12, 1963) to the date of the signing of the National Accord (Feb. 28, 2008). The Commission was designed to have six Kenyan commissioners, and three international commissioners. The email from my newly acquired Facebook friend was in connection with filling the positions of the three international commissioners.

I was blessed to be chosen as one of them. The other two international commissioners were from Africa: a female judge from Zambia and a male UN diplomat from Ethiopia. We were joined by six Kenyans who had gone through a vetting process involving civil society and Parliament. We were to find, however, that the vetting was not as thorough as it should have been.

One of the major challenges we faced concerned our chairman. It emerged within six months of the Commission being created that our chairman was linked to three areas of human rights violations we were to investigate: an assassination, a massacre, and corruption related to land transactions. Because of his presence and his unwillingness to agree to a process of evaluating whether he should remain with the Commission given his clear conflicts of interest, we lost a year of work.

During that time much of civil society, most foreign donors, and some victims groups refused to work with us. We thus spent a year with little money and little public support. He did agree to leave the Commission temporarily for 14 months, during which we were able to raise money and conduct much of the work we were hired to do. Unfortunately he returned, again without any process evaluating whether it was proper for him to be a member, much less chair, of the Commission given his conflicts of interest.

 During that 14-month period, much work was done. While I was based in the comfortable and cosmopolitan city of Nairobi, I traveled the length and breadth of Kenya. From the verdant tea farms in the west and southwest of the country, to the dry desert region in the northeast, I saw a higher percentage of diversity in Kenya than I have of any other country in the world, including the United States.

"We were in our houses. They came at around 6:00 a.m. They took out all the men, they beat all the men. They took me and a neighbour and raped us. Some animals were killed and others were taken away. My husband was killed in the process...while one was holding my hand, another held my legs, and they broke my knee. After the first one raped me, the other one who was holding my hands raped me too...they raped my neighbour's daughter also."
A woman testifying about abuses suffered in the 1960ss

As part of our work, the Commission visited each of the 47 counties of the country and held public hearings in each of those areas. Kenya is a diverse country: a coastal region that has a booming tourism (including sex tourism) trade that used to be a protectorate of the Sultan of Oman; the desert regions of the Northeast; a northern region with much of the population leading a pastoralist lifestyle; coffee and tea growing regions to the west with the second tallest mountain in Africa; and a capital, Nairobi, of over three million people that is a major financial and political center of the east African region. One day we spent 17 hours driving over rocky dirt tracks (to call them roads would be a bit of an overstatement); another day we braced ourselves in the car as we slid down a muddy road down the side of a mountain with a sheer drop off to our right.

We usually spent three days in a location conducting public hearings. One day was devoted to a women's hearing, during which women testified to fellow women about the atrocities they had experienced and witnessed. It was humbling to arrive in a remote desert village to find literally hundreds of people patiently waiting for us to set up so they could tell their stories. I will never forget some of the faces and voices of those many Kenyans who patiently and calmly recounted horrific atrocities that they, their family, or their friends had suffered.  

Many of them had never spoken of the abuses they suffered. As one woman told us, "I did not imagine that a day will come when we will talk freely about issues affecting us."

Did it make a difference? As with all such questions, the answer is complex. There is no question that holding public hearings and providing individuals with an opportunity to, in many cases for the first time, share their stories of violation with their communities and the nation, provided some benefit. Countless witnesses acknowledged the relief they felt in finally being able to share their stories. But many, including many of those who were grateful for being able to share their stories publicly for the first time, wanted more; for them justice demanded more than just public acknowledgement. Some wanted reparations - either direct assistance to themselves, educational assistance for their children, or the creation of local health clinics and other community resources. Some also want those individuals responsible for the violations to be held to account, usually through criminal prosecution.

As I write this we have still not completed our work. We are in the process of drafting our final report, which will include recommendations with respect to reparations, prosecutions, legal and institutional reforms, and other matters arising from the testimony we received from more than 40,000 Kenyans (the most number of testimonies received by any such Commission; the South African truth commission, by contrast, received testimony from a little over 20,000 people out of a national population similar in size to Kenya). I continue to draft, edit, and engage in other related work for the Commission as I return to teaching at the law school.

It is perhaps too early to assess adequately how this three-year experience has influenced my teaching, scholarship and service. I have no doubt that it has. As I ease back into the relative comfort of academia, I find myself grateful for the predictable rhythm of the academic year: the eager intellectual curiosity of my students, the intellectual engagement and collegiality of my colleagues, and the dedication, hard work, and efficiency of the university's staff. I also find myself remembering the faces and voices of the thousands of Kenyans I encountered. Their struggle is inspiring, and I hope, that as I and the Commission begin to wind up our work, that we will achieve some small measure of justice for them and their families.

Professor Ron Slye teaches, writes and consults on public international law and international human rights law. He specializes in international criminal law, including legal responses to genocide and other mass atrocities. He previously served as a legal consultant to the South African Truth and Reconciliation Commission and advised the Documentation Center of Cambodia, the main repository of documents on the Khmer Rouge era. Read more about the Commission's work at www.tjrckenya.org 

 - Winter 2012-13