Kenya National Dialogue and Reconciliation - Truth, Justice and Reconciliation Commission

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Country/entity: Kenya
Region: Africa (excl MENA)
Agreement name: Kenya National Dialogue and Reconciliation - Truth, Justice and Reconciliation Commission
Date: 4 Mar 2008
Agreement status: Multiparty signed/agreed
Interim arrangement: Yes
Agreement/conflict level: Intrastate/intrastate conflict
Kenyan Post-Electoral Violence (2007 - 2008)
The conflict emerged as post-election violence. After the incumbent President Kibaki was declared the winner of the Kenyan presidential elections in December 2007, complaints of fraud and a structural disadvantage affecting his competitor Raila Odinga lead to outbreaks of severe ethno-political violence. After the first incidents in the Rift Valley region, mainly directed against the Kikuyu ethnic group – the traditional powerbase of Kibaki – the fighting spread to the cities of Nairobi and Mombasa. After two months, Kibaki and Odinga agreed on a power-sharing agreement that granted Odinga the post as a Prime Minister and ended the violence.
Stage: Framework/substantive - partial
Conflict nature: Government
Peace process: Kenya peace process
Parties: On behalf of Government/PNU:
- Hon. Martha Karua
- Hon. Sam Ongeri
- Hon. Mutula Kilonzo
- Hon. Moses Wetang'ula

On behalf of ODM:
- Hon. Musalia Mudavadi
- Hon. William Ruto
- Hon. James Orengo
- Hon. Sally Kosgei
Third parties: - Witnessed by:
For the Panel of Eminent African Personalities, H.E. Oluyemi Adeniji, Session Chair
Description: This agreement provides for the implementation of a Truth and Reconciliation Commission. It defines its general parameters.

Agreement document: KE_080304_Kenyan National Dialogue and Reconciliation-Truth, Justice and Reconciliation Commission.pdf (opens in new tab) | Download PDF

Groups

Children/youth: No specific mention.
Disabled persons: No specific mention.
Elderly/age: No specific mention.
Migrant workers: No specific mention.
Racial/ethnic/national group: No specific mention.
Religious groups: No specific mention.
Indigenous people: No specific mention.
Other groups: No specific mention.
Refugees/displaced persons: Groups→Refugees/displaced persons→Substantive
Page 1, General Parameters:
...
The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.
Social class: No specific mention.

Gender

Women, girls and gender: Page 2, Guiding Principles:
...
The Commission will consist of seven members, with gender balance taken into account.
Men and boys: No specific mention.
LGBTI: No specific mention.
Family: No specific mention.

State definition

Nature of state (general): No specific mention.
State configuration: No specific mention.
Self determination: No specific mention.
Referendum: No specific mention.
State symbols: No specific mention.
Independence/secession: No specific mention.
Accession/unification: No specific mention.
Border delimitation: No specific mention.
Cross-border provision: No specific mention.

Governance

Political institutions (new or reformed): Governance→Political institutions (new or reformed)→General references
Page 2, Guiding Principles:
...
Appropriate powers: The Commission shall be given powers of investigation, including the right to call persons to speak with the Commission, and powers to make recommendations that shall be considered and implemented by the government or others. These recommendations may include measures to advance community or national reconciliation; institutional or other reforms, or whether any persons should be held to account for past acts.
Elections: No specific mention.
Electoral commission: No specific mention.
Political parties reform: No specific mention.
Civil society: No specific mention.
Traditional/religious leaders: No specific mention.
Public administration: No specific mention.
Constitution: No specific mention.

Power sharing

Political power sharing: No specific mention.
Territorial power sharing: No specific mention.
Economic power sharing: No specific mention.
Military power sharing: No specific mention.

Human rights and equality

Human rights/RoL general: Page 1, General Parameters:
...
The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.

Page 2, Guiding Principles:
The Commission will reflect the following principles and guidelines, taking into account international standards and best practices:

Page 2, Selection and Composition:
..
In keeping with international best practices, and to ensure broad public trust in and ownership of the process of seeking the truth, the national members of the Commission shall
be chosen through a consultative process.
Bill of rights/similar: No specific mention.
Treaty incorporation: No specific mention.
Civil and political rights: No specific mention.
Socio-economic rights: No specific mention.

Rights related issues

Citizenship: No specific mention.
Democracy: No specific mention.
Detention procedures: No specific mention.
Media and communication: No specific mention.
Mobility/access: No specific mention.
Protection measures: No specific mention.
Other: No specific mention.

Rights institutions

NHRI: No specific mention.
Regional or international human rights institutions: No specific mention.

Justice sector reform

Criminal justice and emergency law: No specific mention.
State of emergency provisions: No specific mention.
Judiciary and courts: No specific mention.
Prisons and detention: No specific mention.
Traditional Laws: No specific mention.

Socio-economic reconstruction

Development or socio-economic reconstruction: No specific mention.
National economic plan: No specific mention.
Natural resources: No specific mention.
International funds: Page 2, Guiding Principles:
...
Financial support: The Parties encourage strong financial support to the Commission. It is expected that the Government of Kenya will provide a significant portion of the Commission's budget. Other funding may be obtained by the Commission from donors, foundations, or other independent sources.
Business: No specific mention.
Taxation: No specific mention.
Banks: No specific mention.

Land, property and environment

Land reform/rights: Land, property and environment→Land reform/rights→Property return and restitution
Page 1, General Parameters:
...
The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.
Pastoralist/nomadism rights: No specific mention.
Cultural heritage: No specific mention.
Environment: No specific mention.
Water or riparian rights or access: No specific mention.

Security sector

Security Guarantees: No specific mention.
Ceasefire: No specific mention.
Police: No specific mention.
Armed forces: No specific mention.
DDR: No specific mention.
Intelligence services: No specific mention.
Parastatal/rebel and opposition group forces: No specific mention.
Withdrawal of foreign forces: No specific mention.
Corruption: Page 1, General Parameters:
...
The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.
Crime/organised crime: No specific mention.
Drugs: No specific mention.
Terrorism: No specific mention.

Transitional justice

Transitional justice general: No specific mention.
Amnesty/pardon: Transitional justice→Amnesty/pardon→Amnesty/pardon proper
Page 1, General Parameters:
...
No blanket amnesty will be provided for past crimes. Individual amnesty may be recommended by the Commission in exchange for the full truth, provided that serious
international crimes (crimes against humanity, war crimes, or genocide) are not amnestied, nor persons who bear the greatest responsibility for crimes covered by the Commission.
Courts: No specific mention.
Mechanism: [Summary: This agreement provides for the implementation of a Truth and Reconciliation Commission. It defines its general parameters.]
Prisoner release: No specific mention.
Vetting: No specific mention.
Victims: Page 1, General Parameters:
...
The Commission shall receive statements from victims, witnesses, communities, interest groups, persons directly or indirectly involved in events, or any other group or individual; undertake investigations and research; hold hearings; and engage in activities as it determines to advance national or community reconciliation. The Commission may offer confidentiality to persons upon request, in order to protect individual privacy or security, or for other reasons. The Commission shall solely determine whether its hearings shall be held in public or in camera.
Missing persons: No specific mention.
Reparations: No specific mention.
Reconciliation: Page 1, Background: Recalling the 14 February 2008 agreement by the Parties for a Truth, Justice and Reconciliation Commission, and in a spirit of reconciliation and national healing;
The Parties to the Kenyan National Dialogue and Reconciliation agree to the following general parameters and principles for the establishment of such a commission.

Page 2, Guiding Principles:
Appropriate powers: The Commission shall be given powers of investigation, including the right to call persons to speak with the Commission, and powers to make recommendations that shall be considered and implemented by the government or others. These recommendations may include measures to advance community or national reconciliation; institutional or other reforms, or whether any persons should be held to account for past acts.

Implementation

UN signatory: No specific mention.
Other international signatory: - Witnessed by:
For the Panel of Eminent African Personalities, H.E. Oluyemi Adeniji, Session Chair
Referendum for agreement: No specific mention.
International mission/force/similar: No specific mention.
Enforcement mechanism: No specific mention.
Related cases: No specific mention.
Source: http://www.peacemaker.un.org/

Background

Kenyan National Dialogue and Reconciliation

TRUTH, JUSTICE AND RECONCILIATION COMMISSION

Recalling the 14 February 2008 agreement by the Parties for a Truth, Justice and Reconciliation Commission, and in a spirit of reconciliation and national healing;

The Parties to the Kenyan National Dialogue and Reconciliation agree to the following general parameters and principles for the establishment of such a commission:

General Parameters

A Truth, Justice, and Reconciliation Commission ("the Commission") will be created through an Act of Parliament, which will be adopted by the legislature within the next four weeks.

The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals.

This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions.

The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence.

Other historical injustices shall also be investigated.

The Commission will inquire into such events which took place between December 12, 1963 and February 28, 2008.

However, it will as necessary look at antecedents to this date in order to understand the nature, root causes, or context that led to such violations, violence, or crimes.

The Commission shall receive statements from victims, witnesses, communities, interest groups, persons directly or indirectly involved in events, or any other group or individual;

undertake investigations and research;

hold hearings;

and engage in activities as it determines to advance national or community reconciliation.

The Commission may offer confidentiality to persons upon request, in order to protect individual privacy or security, or

for other reasons.

The Commission shall solely determine whether its hearings shall be held in public or in camera.

No blanket amnesty will be provided for past crimes.

Individual amnesty may be recommended by the Commission in exchange for the full truth, provided that serious international crimes (crimes against humanity, war crimes, or genocide) are not amnestied, nor persons who bear the greatest responsibility for crimes covered by the Commission.

The Commission will complete its work and submit a final report within two years.

The final

report shall state its findings and recommendations, which will be submitted to the President and will be made public in fourteen days and tabled in Parliament.

Guiding Principles

The Commission will reflect the following principles and guidelines, taking into account international standards and best practices:

Independence:

The Commission shall operate free from political or other influence.

It shall determine its own specific working methodologies and work plan, including for investigation and reporting, and will set out its own budget and staff plan.

Fair and balanced inquiry:

In all of its work, the Commission shall ensure that it seeks the truth without influence from other factors.

In representations to the public through hearings, statements, or its final report, the Commission shall ensure that a fair representation of the

truth is provided.

Appropriate powers:

The Commission shall be given powers of investigation, including the right to call persons to speak with the Commission, and powers to make recommendations that shall be considered and implemented by the government or others.

These recommendations may include measures to advance community or national reconciliation;

institutional or other reforms, or whether any persons should be held to account for past acts.

Full cooperation:

Government and other State offices shall provide information to the Commission on request, and provide access to archives or other sources of information.

It is urged that other Kenyan and international individuals and organizations also provide full cooperation and information to the Commission on request.

Financial supporl:

The Parties encourage strong financial support to the Commission.

It is expected that the Government of Kenya will provide a significant portion of the Commission's budget.

Other funding may be obtained by the Commission from donors, foundations, or other independent sources.

Selection and Composition

The Commission will consist of seven members, with gender balance taken into account.

Three of the members shall be international.

The members shall be persons of high moral integrity, well regarded by the Kenyan population, and shall include a range of skills, backgrounds, and professional expertise.

As a whole, the Commission shall be perceived as impartial in its collectivity, and no member should be seen to represent a specific political group.

At least two but no more than five of the seven commissioners should be lawyers.

In keeping with international best practices, and to ensure broad public trust in and ownership of the process of seeking the truth, the national members of the Commission shall be chosen through a consultative process.

The Commissioners shall be named no more than eight weeks after the passage of the Act that establishes the Commission.

The three international members shall be selected by the Panel of Eminent African Personalities, taking into account public input.

Signed on this day 4 March 2008:

On behalf of Government/PNU:

- Hon.

Martha Karua

- Hon.

Sam Ongeri

- Hon.

Mutula Kilonzo

- Hon.

Moses Wetang'ula

On behalf of ODM:

- Hon.

Musalia Mudavadi

- Hon.

William Ruto

- Hon.

James Orengo

- Hon.

Sally Kosgei

Witnessed by:

For the Panel of Eminent African Personalities

H.E. Oluyemi Adeniji

Session Chair