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ICTJ to Kenyas High Court: Uphold Victims Rights toTruth, Justice

Nairobi, Kenya, October 3, 2013 In a legal brief submitted Wednesday 2, 2013to Kenyas High Court, the International Centre for Transitional Justice (ICTJ) warnsthat striking down parts of the final report of the Truth, Justice, and ReconciliationCommission of Kenya (TJRC) would amount to censorship and obstruct the right of victims to an effective remedy for past violations.

The High Court is now considering a petition challenging the constitutionality of the TJRCs recommendations, which petitioners argue are mandatory.Recommendations include the investigation and prosecution of persons suspectedof committing gross human rights violations and that the president to apologizefor historical atrocities.

In its amicus brief, ICTJ clarifies that while the recommendations of the truthcommission are not legally binding, they are nonetheless legitimate.

It is of great concern to us that this petition reflects fundamental misconceptionsabout critical transitional justice issues that could undermine victims rights, saysChristopher Gitari of ICTJ Kenya. It is our hope that the court will benefit from ICTJsknowledge and comparative expertise on the objectives of truth-seekingprocesses.

Kenyas TJRC was established in 2008 to investigate gross human rights violationsand other historical injustices committed in Kenya between December 1963 andFebruary 2008. Working over a period of four years, the TJRC sought to identify theunderlying causes of the 2007/2008 post-election violence and propose sustainablesolutions. On May 21, 2013, it handed over its final report, which is now tabledbefore the National Assembly.

The TJRC report includes several recommendations regarding access to justice,reform of government institutions, investigations and prosecutions, reparations, andexclusion from public office of a number of people.

In recognition of ICTJs knowledge and experience of truth seeking and transitional justice, the High Court accepted ICTJ as an amicus curiae (or friend of the court),allowing the group to serve as experts before the court as it weighs the merits of the petition.

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The executive summary of ICTJs submissions is set out below:

Executive summary

1. The Amicus contends that the recommendations of the Truth, Justice andReconciliation Commission (TJRC or the Commission) cannot be mandatory inforce and effect as this would violate the Constitution of Kenya, 2010 (theConstitution) which allocates power between the different branches of government.

1.1.The powers and functions of Parliament, the executive (including the prosecution service) and the judiciary are set out in the Constitution andthese cannot not be usurped unless in specific instances where theConstitution may so direct.

1.2.Nonetheless the Amicus submits that in terms of the Truth, Justice and

Reconciliation Act, 2008 (TJR Act or the Act), as well under international law, the Government is required to consider therecommendations seriously and provide reasons when it decides not toimplement a recommendation.

1.3.While this Honourable Court ought to find that the recommendations carry no legal force, it should not grant any relief expunging recommendationsfrom the final report as this would amount to censorship. It would also beunnecessary and irrational. Such relief would have the effect of:

1.3.1. Denying victims, as well as all Kenyans, of their right to the truth whichis protected under international law and enshrined within certain rightsand freedoms of the Constitution.

1.3.2. Inhibiting the ability of victims of serious human rights violations tovindicate their rights to reparations and an effective remedy, which isupheld in the Constitution and by several treaties that are binding onKenya.

2. While the recommendations dealing with apologies, as with all therecommendations, cannot be compulsory, they are nonetheless legitimaterecommendations. Recommendations to apologise, directed to persons holdingleadership positions of formerly abusive institutions, are in accordance withinternational law and best practice. Persons in such positions assume political

and institutional responsibility to redress the wrongs suffered by victims.3. The adjustments and deletions made to the Commissions final report after 3

May 2013 (the last day of the statutory extension) were effected without any legal authority and ought to be set aside as illegal. Those inside and outside theCommission who secured such adjustments violated several provisions of theTJR Act and committed punishable offences. Most seriously they gravely undermined the independence of the Commission which is protected under the

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Act as well as in terms of international law. Such interference bodes ill for theconduct of future independent investigations in Kenya.

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