By Ndung’u Wainaina
Any apology not based on solid foundations of the truth, justice, reparation and guarantees of non-recurrence is a hoax. There must be need for justice and accountability for egregious human rights abuses that exists in Kenya.
Uncovering the truth about past human rights violations has been one of the main demands of Kenyan victims, their families, human rights activists, and diverse sectors of society, who see it as the only way to heal the wounds of the country’s dark past. Many Kenyans want genuine answers about what happened, to whom, by whom, and why.
A historical narrative tracing Kenya’s post-independence political regimes, and the commission of a myriad of human rights violations by them (and various government elements, in particular excessive use of force by security agencies, underscores the need for transitional justice in Kenya. Bringing justice to the victims of dictatorship is would be great milestone in Kenya’s path to democracy. But transitional justice is not just about uncovering the truth. Accountability, institutional reform, and criminal justice have to advance simultaneously.
Successive post-independence Kenyan governments, under Presidents Kenyatta, Moi, Kibaki and Uhuru, have engaged in, condoned or overlooked the commission of gross human rights violations as well as other crimes, with impunity.
Such criminal acts have included political assassinations; torture; inter-ethnic violence sanctioned and allegedly incited by the state; arbitrary arrests and detentions; extra-judicial police killings; banning of opposition parties; irregular allocation of land; and various other economic crimes, which cannot be whitewashed with an empty apology.
Where such human rights violators have enjoyed impunity for their acts – impunity then incentivising further violations – a strong argument may be made for the need for transitional justice mechanisms to be fully implemented in Kenya. Indeed, the World Bank’s World Development Report 2011, entitled Conflict, Security and Development, recognises a role for transitional justice in combating impunity as a means to ending cycles of conflict and violence.
We recall that on February 1, 2008 under mediation of former UN Secretary General Kofi Annan, he reiterated that the Kenya’s political solution could only be anchored properly under a “broad reform agenda and other mechanisms” to address the root causes of the recurring political crisis. The mediation team noted, “Poverty, the inequitable distribution of resources and perceptions of historical injustices and exclusion on the part of segments of Kenyan society constitute the underlying causes of the prevailing social tensions, instability and cycle of violence.” It firmed issues that needed to be tackled included constitutional reforms, tackling poverty and inequity, tackling unemployment especially among the youth, consolidating national cohesion and unity, undertaking land reform and addressing transparency, accountability and impunity.
The broad transitional justice agenda under Kofi Anan mediation agreements was abandoned. Even the Constitution of Kenya 2010 has its key provisions and chapters disregarded, diluted and or unimplemented. How then can one casually purport to issue an apology? It was pure gimmick. It has no substance. Every Kenyans need to know that there is no national dialogue intended with handshake. It is a two gentlemen agreement on their programme of action. It is not the first time we are hearing words ‘apology’ and ‘never again’.
Kenya must undertake well structured, inclusive, participatory, independent, transparent and gender integrated comprehensive transitional justice measures with high potential to mitigate the risk of further violence, promote civilian security, strengthen the rule of law, rebuild social cohesion, encourage respect for human rights, address the needs of victims, facilitate development, and restore trust in formerly abusive institutions. This is the only viable solution to build a more cohesive, inclusive and democratic country.