Truth team: It’s not too late to snatch victory for victims

By Njonjo Mue

In the last two weeks, two important conferences have taken place to evaluate the importance of truth commissions in the search for justice for victims of human rights violations and promoting good governance.

On February 27 and 28, the National Victims and Survivors Network held a conference at Kasarani calling for implementation of the recommendations of the Truth Justice and Reconciliation Commission (TJRC).

This was followed a week later by an international conference at McGill University in Canada on the importance of truth and reconciliation commissions in promoting democratic good governance.

While formally unrelated, these conferences raise important questions about the role of truth commissions in consolidating democratic transitions.

The Kasarani conference brought together 65 Kenyan victims and survivors of human rights violations. Investigating these violations formed the core mandate of the TJRC.

The aims were to evaluate the TJRC report and explore strategies for pushing for implementation of its recommendations.

The conference provided victims and survivors with the first real opportunity to interrogate the outcome of the truth seeking process and discuss the status of the report and prospects for its implementation.

Of specific concern was that almost a year since the TJRC completed its work at considerable public expense, there had been deafening silence from the government on the fate of its report.

The TJRC Act provided specific timelines on the presentation of the report to the President, its publication in the Kenya Gazette, its tabling before Parliament, and the implementation of its recommendations.

The government was required to report periodically to Parliament on the progress of implementation. But none of this has happened.

REFUSED TO PUBLISH

Instead, the final days of the TJRC were marred by allegations of political interference with the report-writing; the President was three weeks late in receiving the report; the Government Printer has so far refused to publish it despite having been paid by the TJRC; and instead of facilitating the implementation of the report’s recommendations by establishing an implementation committee, Parliament amended the TJRC Act to give itself power to reopen the report to remove parts it did not like.

In this environment, justice for victims and survivors has become a mirage that seems to recede beyond reach with every passing day.

The gathering at McGill University brought together international experts to explore the factors that condition the success of TRCs in creating social cohesion as a foundation for democratic good governance.

They examined diverse national experiences including from Canada, which has an ongoing TRC to investigate the history and abuses of the Indian Residential School System.

There was common agreement that TRCs had become an important, if imperfect, tool to address past wrongs through restorative justice. But for a TRC to become effective, it should not be a process that merely creates more processes, nor should it be mere catharsis.

Rather it should lead to concrete action that begets true benefits and delivers real justice to victims through reparations and reform of abusive institutions. And to promote good democratic governance, TRCs should also contribute to genuine reconciliation.

Measured against these indicators, the Kenyan truth seeking process is at serious risk of failure. During its lifetime, the TJRC delivered little truth, justice or reconciliation, and the steps Kenya has taken so far in achieving good governance have been made in spite, and not because, of the TJRC.

But it is still not too late to snatch victory from the jaws of defeat for victims. The government could yet salvage the TJRC’s legacy by working in good faith to implement its recommendations.

The writer is a human rights lawyer and programme adviser for Kenyans with Peace, Truth and Justice

Published in Saturday Nation of 22 March 2014 and can be accessed here: http://mobile.nation.co.ke/blogs/Truth-team--It-s-not-too-late-to-snatch-victory-for-victims-/-/1949942/2252920/-/format/xhtml/-/37sfwez/-/index.html

It's Not Too Late To Save Truth Report

FRIDAY, MARCH 21, 2014 - 00:00 -- BY NJONJO MUE

In the last two weeks, two important conferences have taken place to evaluate the importance of truth commissions in the search for justice for victims of human rights violations and promoting good governance.

On February 27 and 28, the National Victims and Survivors Network held a conference at Kasarani calling for implementation of the recommendations of the Truth Justice and Reconciliation Commission.

This was followed a week later by an international conference at McGill University in Montreal, Canada, on the importance of truth and reconciliation commissions (TRCs) in promoting democratic good governance. While formally unrelated, these conferences raise important questions about the role of truth commissions in consolidating democratic transitions.

 The Kasarani conference brought together 65 Kenyan victims and survivors of human rights violations. Investigating these violations formed the core mandate of the TJRC.

The aims of the conference were to evaluate the contents of the TJRC report and to explore strategies for pushing for the implementation of its recommendations.

 The conference provided the victims and survivors with the first real opportunity to interrogate the outcome of Kenya’s truth seeking process and discuss the current status of the report and the prospects of implementation of its recommendations.

 Of specific concern was that almost a year since the TJRC completed its work at considerable public expense, there had been deafening silence from the government on the fate of its report.

The TJRC Act had provided very specific timelines as to the presentation of the report to the President, its publication in the Kenya Gazette, its tabling before Parliament, and the implementation of its recommendations which was to be overseen by a proposed Implementation Committee. The government was required to report periodically to Parliament on the progress of implementation. But none of this has happened.

Instead, the final days of the TJRC were marred by allegations of political interference with the report-writing process; the President was three weeks late in receiving the report; the Government Printer has so far refused to publish the report despite having been paid to do so by the TJRC; and instead of facilitating the implementation of the report’s recommendations by establishing the proposed implementation committee, Parliament amended the TJRC Act to give itself power to reopen the report to remove the parts that it did not like. In this environment, Justice for victims and survivors has become a mirage that seems to recede further beyond reach with every passing day.

The gathering at McGill University brought together international experts to explore the factors that condition the success of TRCs in contributing to creating social cohesion as a foundation for democratic good governance.

They examined diverse national experiences including from Canada which has an ongoing TRC to investigate the history and abuses of the Indian Residential School System; Argentina which had one of the first TRCs established in 1983; South Africa, whose TRC was among the most celebrated in the world and which has continued to provide inspiration for subsequent truth commissions; Sierra Leone; Australia; Northern Ireland; Guatemala; Brazil; Uruguay and Kenya.

 There was common agreement that TRCs had become an important, if imperfect, tool mandated by law to address past wrongs through restorative justice.

But for a TRC to become effective, it should not be a process that merely creates more processes, nor should it be mere catharsis.

Rather it should lead to concrete action that begets true benefits and delivers real justice to victims through reparations and the reform of abusive institutions.

And to promote good democratic governance, TRCs should also contribute to genuine reconciliation which may be defined as anything that that enables people to live peacefully together.

 Measured against these indicators, the Kenyan truth seeking process is in serious risk of failure. During its lifetime, the TJRC delivered little truth, justice or reconciliation, and the steps Kenya has made so far in achieving good governance have been made in spite, and not because, of the TJRC.

But it is still not too late to snatch victory for victims from the jaws of defeat. The government could yet salvage the TJRC’s legacy by working in good faith to implement its recommendations.

The writer is a human rights lawyer and a program adviser for Kenyans with Peace, Truth and Justice.

- See more at: http://www.the-star.co.ke/news/article-159714/its-not-too-late-save-truth-report#sthash.vafcZK3X.dpuf

As things fall apart...

'Things fall apart
The centre cannot hold'

Hapless shoppers are attacked
As they shop and dine in malls
Inquiries are promised
But never began
Road users die daily
In myriad incidents
mis-named accidents
Insecurity abounds
From the leafless North
To the leafy suburbs
The cost of living
Goes through the roof
With new taxes and levies
Everywhere.
In the midst of all this
The National Assembly
Suspends all other business
To discuss the important matter
Of who Should fly
The national flag
And which category of leaders
May use the title
'Your Excellency.'

'Things fall apart
The centre cannot hold.'

Mamdani is wrong, it’s not impunity that heals but justice

During a debate recently held at Kenyatta University, Prof Mahmood Mamdani spoke on the topic, “Can Courts End Civil Wars?” The main thrust of his argument was that during or in the immediate wake of conflict, criminal prosecutions should play no role in efforts to reconstruct society. I attended the debate and disagreed with Mamdani. I later set out my reasons in this opinion piece carried in the current issue of The East African.

-------------------

During a debate recently held at Kenyatta University, Prof Mahmood Mamdani spoke on the topic, “Can Courts End Civil Wars?” The main thrust of his argument was that during or in the immediate wake of conflict, criminal prosecutions should play no role in efforts to reconstruct society.

He argued that criminal violence should not be conflated with political violence because the latter has a constituency. He further stated that prosecuting perpetrators in the wake of political atrocities would exacerbate rather than solve the problem because political violence is not just driven by perpetrators, but by issues.

In light of recent and ongoing experience in many African countries where gross human-rights violations continue to be committed in the guise of contestation for political power, Prof Mamdani’s thesis is disturbing.

It comes dangerously close to giving political elites a blank cheque to commit atrocities against their own people and avoid accountability by claiming a political motive for their criminal activities.

While we must concede that criminal trials cannot by themselves end civil war, Prof Mamdani errs by going to the opposite extreme in suggesting that politics alone should take centrestage.

“The rule of law requires a stable political order,” he asserted during the debate, adding that politics always trumps the law in post-conflict societies.

However, the role of criminal prosecutions and accountability in the immediate aftermath of conflict cannot be gainsaid.

Empirical evidence shows that where there is no accountability for atrocity crimes, they are likely to recur. At the end of the decade-long Sierra Leone civil war, for instance, the first peace agreement signed in Lome in 1999 provided for a blanket amnesty for all actors in the conflict, but it was not long before vicious fighting broke out once again.

The government of Sierra Leone then requested the United Nations to facilitate the setting up of a Special Court to prosecute those most responsible for the atrocities.

The court indicted several high-level actors including rebel leader Foday Sankoh, who subsequently died in custody while undergoing trial, and former Liberian president Charles Taylor, who is currently serving a 50-year jail sentence for his crimes during the civil war.

Criminal prosecution of perpetrators was a key variable that contributed significantly to the ending of the Sierra Leone conflict and its transition to democracy.

Criminal accountability also helps a society to restore the rule of law and affirms the human rights of victims, thereby helping to reinstate the social contract and to send a clear message to victims that the state is able and willing to protect them.

Underlying most atrocity crimes is a narrative of dehumanising and disenfranchising of “the other.” Criminal accountability sends a clear message that all citizens are equal members of the polity deserving of equal protection from the law and not mere objects to be sacrificed at the altar of the search for political dominance.

Where victims’ needs for justice are left unaddressed, victim communities themselves become vulnerable to mobilisation by warlords to seek revenge against what they consider enemy communities.

However, isolating and prosecuting individual perpetrators individualises guilt and stops the cycle of communal violence.

The struggle for political stability in most post-conflict societies beginning in Latin America in the late 1970s and sweeping through Eastern Europe, Asia and Africa especially after the end of the Cold War has given rise to a new field of human rights termed transitional justice.

It refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human-rights violation.

These measures include prosecuting those responsible for human-rights abuses; establishing the truth about the nature of the violations; delivering reparations to victims; and implementing institutional reforms to change those institutions that aggravated or caused the conflict and creating new ones to promote human rights. 

None of these measures is sufficient in and of itself. Transitional justice mechanisms must be implemented in a comprehensive, mutually supportive and carefully sequenced manner.

But where crimes against humanity, genocide, war crimes and other gross violations of human rights have been committed, perpetrators must be held criminally accountable, no matter what the motive for their actions or the constituency that they purport to act for.

Njonjo Mue is a human-rights lawyer and a programme adviser to Kenyans for Peace, Truth and Justice

See article at this link: http://www.theeastafrican.co.ke/OpEd/comment/Mamdani-is-wrong--it-s-not-impunity-that-heals-but-justice/-/434750/2226690/-/item/1/-/129q54oz/-/index.html

Her Name is Nancy...

[From the archives... I wrote this journal entry in mid 2007]

I've seen her countless times but have never looked at her face. Actually, I am more familiar with her tall figure as she usually stands silhouetted by the soft glow of a lone street lamp in the early evening hours of most days just outside the Mika restaurant opposite the Nairobi Women's Hospital. 

The first few days I saw her there I thought she was waiting for the bus. But later, it occurred to me that she was not making her way home from work; she was beginning her workday. Her body being what she had come to offer to any passer-by who sought to ease the pain of loneliness in this big, unfriendly city...

Katindi and I often hang out at Mika after work. It is usually quiet and their tea is reasonably priced. The waiters have come to know us to the point of one of them recently asking us if we could help find his niece a job. And so it is that whenever we drive out of the compound, it is difficult not to notice her lonely, sad figure as she watches the evening passing by. But there is something intriguing about her. She looks decent; not dressed like goods on display; not at all like our sisters on K-Street or even further along the road near Chaka Place. She looks out of place in the oldest profession. I've often wondered what her story is.

But more importantly, I've longed to tell her The Story. Of the Man who cast seven demons out of another lone, elegant, sad figure who often stood silhouetted against the street lamps of First Century Palestine in a small seaside town called Magdalla. Of the Man who dared anyone who had his act together to cast the first stone and found no takers. Of the Man who graciously accepted to have his feet washed with tears and dried with hair that had been ruffled by many a lusty hand. And yet he did not feel defiled because he knew that He had already washed away all the filth that had hitherto found abode in the woman who broke the alabaster jar and gladly wasted her expensive perfume on Him.

But I never got the chance. Not until last evening. 

It's interesting how God orchestrates things to achieve His purpose and all we have to do is be alert and follow His prompting. I had risen up in the morning and had a wonderful quiet time. This week I've been going through Luke's Gospel and really enjoying it. Anyway just as I was leaving home, I had picked up a tract of 'The Four Spiritual Laws', just in case I got a chance to share the gospel with someone at the office, but it turned out that I was too busy to do so during the day.

In the evening a group of guys I normally meet with suggested that we meet at Mika for tea. As twilight gave way to early evening, the skies opened and there was a downpour just as we were winding up our meeting. The rain forced her to take shelter in the restaurant and as we were leaving, she sat quietly at a table drinking some warm water and browsing absentmindedly through the day's paper, doubtless wondering when the rain would subside so that she could go back to work.

I had half an hour to spare before the time I was supposed to pick up Katindi from her office. As the guys were leaving, for accountability's sake, I told Ian that I was remaining behind to talk to her. I then went to the car to drop my Bible and say a quick prayer. I came back and tentatively approached her table.

"Do you mind if I join you?" I asked. She appeared a little confused at first, then a bit defensive as she tried to read my face. I am certain that she is not used to being approached so boldly in a public place. I introduced myself and offered to buy her a cup of tea. I asked her if we could move to a more private part of the restaurant and she obliged.

"My name is Nancy*," she offered as we sat at our new table. When I made to go and call the waiter, she said she had already asked him to come. And so I sat facing her. For the purposes of this evening, I had never seen her before. I was taking my cue from the Carpenter and I was not here to condemn her for her past.

I asked her about her family and she told me of a nine-year old daughter, Grace*, whom she sometimes wishes was a son because ‘girls are ruder to their mothers.’ She told me she came from Bondo and had had her daughter just after completing High School. She then came to Nairobi and lives in Eastleigh. I did not ask what she does for a living.

"If someone told you that your daughter was top of her class at the end of term, would you be able to keep it to yourself?" I asked wanting to get on with the purpose of my asking to speak to her.

"No, I wouldn't," she answered, "You can't keep such good news to yourself."

"That is why I asked to speak to you." I said. "You see I have such good news that it is difficult for me to keep it to myself; would you like to hear it?" I asked reaching out for the tract. She was enthusiastic and over the next fifteen minutes, I shared with her the fundamentals of the Good News: that God loves her and has a wonderful plan for her life; that man is sinful and separated from God and is therefore incapable of experiencing God's love and wonderful plan; that man tries a variety of ways to reach God in his own efforts but fails every time; that Jesus is God's provision to bridge the gulf between a Holy God and sinful man; that it is not enough just to know all this, but we must accept the free gift of life given by God through the death and resurrection of Jesus Christ. This we do by inviting Jesus into our lives by faith.

She was so receptive and she enthusiastically took in all that I was sharing with her and asked questions for clarification as we went along. When it came to the critical question - Which circle represents your life right now? - she said that she had Christ in her life because she was catholic. I was tempted to challenge her assertion, based on what I knew to be her lifestyle, but Wisdom prevailed and I held my counsel, for I had purposed to know nothing about her past. I was here to share the Good News and I had done my part. As I struggled with disappointment, the still, small voice whispered in my heart the comforting words of Bill Bright: "Evangelism is sharing the Gospel in the power of the Holy Spirit and leaving the result to God."

By now the rain had subsided and I needed to go and pick Katindi up. I couldn't wait to share with her the good news of sharing the good news. As I prepared to leave, I apologised that the waiter had not come to serve us and so I had not bought her the cup of tea that I'd promised at the outset of our conversation. "Oh, don't worry," she said with a smile. "Man shall not live by bread alone." We prayed together and I left...

I went away rejoicing. Without giving in to self-righteous pride, I couldn't help wondering when the last time was when a man had genuinely engaged this precious daughter of Abraham on the basis of equality. I thanked God for giving me the opportunity.

This morning, I was reading Luke again, this time hanging out with Jesus as he sent out the 72, and an interesting truth came to my attention. Luke records how the Lord sent them "ahead of him to every town and place where he was about to go." It is not for me to judge how true her assertion was that she had Christ in her heart. But even if she did not and she did not immediately give her life to Jesus at the restaurant, I felt contented by the fact that I may have been the person Jesus had sent ahead of Him to prepare her to receive Him.

And so the next time Katindi and I go on our date, I know that we shall not just contemplate a solitary figure silhouetted by the soft glow of the lone street lamp, but if she will still be standing there, we shall behold her in a different light, knowing that she is a human being cherished by God who sent His Son to die for her. She is not a faceless figure any more but a person who is in the process of being wooed by the Man from Galilee.  And her name is Nancy...

[*Not her real name]

TRIBUTES GALORE AS MANDELA BIDS SA PARLIAMENT GOODBYE

In March 1998 as he prepared to retire as the first democratically elected president of South Africa, Nelson Mandela addressed Parliament in a moving farewell speech. Prior to his address, South African MPs from all parties paid glowing tributes to the outgoing president. I was then living in Johannesburg and used to write occasionally for Kenyan newspapers on topical issues. As the world now says farewell to the greatest moral leader of our generation, I reproduce an article I wrote for The People newspaper on the occasion of his last address to parliament as president in 1998. Fare thee well, Nelson Mandela. The flame you lit for freedom and justice will burn and continue to inspire the world for generations to come.

TRIBUTES GALORE AS MANDELA BIDS SA PARLIAMENT GOODBYE

By Njonjo Mue in Johannesburg

26 March 1998

The usually divided and sometimes acrimonious South African parliament on Thursday came together in a rare show of unity to give a warm send-off to President Nelson Mandela as he gave his last address as head of state. Opposition party leaders who usually gleefully ascend the podium to vilify the ruling African National Congress (ANC) used the same podium to heap praise on its erstwhile leader.

Marthinus van Schalwyk, the leader of the New National Party, the party that imprisoned Nelson Mandela for 27 years, said of Mandela , “You have the ability to be everybody’s president. It is one of the great ironies that people who suffered greatly have the capacity to forgive greatly.” And as if to exorcise his party of the ghost of its evil past, van Schalwyk stared the beast in the eye saying,  “No jail can ever keep an idea in prison. Convictions can never be held captive forever.”

The leader of the right-wing Freedom Front, Gen. Constant Viljoen, said that Mandela was an “exceptional person, a dignified, elderly leader from the Xhosa people.” The Freedom Front fights for a separate Afrikaner Homeland, hence the reference to Mandela, not as President of South Africa, but a great Xhosa leader.

Patricia De Lille of the Pan Africanist Congress (PAC) told Mandela: “We will miss you. We all love you,” while the leader of the small African Christian Democratic Party , Kenneth Moshoe, expressed surprise and gratitude that Mandela had called upon him, the leader of the smallest party in parliament, for his advice and opinion.

The only discordant note was struck by the leader of the Inkatha Freedom Party (IFP) and Home Affairs Minister, Mangosuthu Buthelezi, who took advantage of the occasion to open up some ugly sores from the troubled past in the ANC/IFP relationship.

But Buthelezi’s aggressive and controversial style was more than made up for by the fragrance of praise showered upon Mandela by Tony Leon, Leader of the Democratic Party, and the utterly captivating ode to a great man, recited by the eloquent Thabo Mbeki, Mandela’s anointed successor.

"There are three categories of remarkable political leaders,” Leone remarked. “The first is the great and the bad: this includes Hitler and Stalin. The second is the great and the good: this includes Winston Churchill and Franklin Roosevelt.

“And then there is the third category – a leader born with a special kind of grace, who seems to transcend the politics of his age. This is a very small category, and in fact I can think of only two such men in this century: Mahatma Gandhi and Nelson Mandela.”

But perhaps the most poetic send-off came from Mbeki: “You have walked along the road of the heroes and heroines. You have borne the pain of those who have known fear and learned to conquer it. You have marched in front when comfort was in the midst of the ranks. You have laughed to contend against a sea of tears. You have cried to broadcast a story of joy. And now you leave this hallowed place to continue to march in front of a different detachment of the same army.”

After the praises, Mandela gave his farewell speech (see separate story) and humbly receive a standing ovation.

As Parliament broke out into song and dance, and South Africans honoured their beloved philosopher-king, the grand old man strode confidently out of the chamber, ending an era in South Africa’s parliamentary history, and moving into the next leg of his long walk to freedom.

*Njonjo Mue is a Kenyan human rights lawyer working with an international organization in Johannesburg.

Civil society groups defend victims at ASP

This article appeared on the blog, The Hague Trials

 

By Nevins Biko*

Kenya’s civil society groups put up a robust defense for victims at the Assembly of States Parties (ASP) in The Hague, where the government and the African Union sought to amend the Rome Statute to provide immunity for sitting heads of state.

The government was caught flat-footed because non-governmental organisations had sent representatives to speak at the assembly and attend all the crucial panel discussions and debates on the amendments. “The voice of the victims must be heard, lest they drown in the noise of those who want to entrench impunity by protecting those who commit serious crimes,“ said Njonjo Mue, one of the civil society representatives.

Civil society speaks out

The government delegation was surprised when Njonjo and his colleagues from the sector were given a platform to address the main plenary of the assembly. There they insisted on having the rights of victims protected instead of the assembly members focusing on suspects who committed the crimes. “The international community should not support impunity by allowing any amendments which will erode the Rome Statute provisions on equality before the law," said Njonjo.

So intense were the differences between the government and the NGOs that the government team stormed out of a key debate after clashing with representatives from civil society organizations. The Kenyan team, led by Deputy Solicitor General Muthoni Kimani, walked of the World Hotel Bel Air where the debate on the implications of the proposed immunity for heads of state on the ICC was taking place.

Delegates from Western countries and other parts of the world were left speechless. Human rights lawyer Njonjo Mue was one of the panelists at the debate. He appealed to the ASP not to bow to pressure and change any aspect of the Rome Statute.

Mue says the Kenya government has not done enough to deal with the problems affecting victims of the violence. He added there is no point for the government to "besiege the world with demands seeking to protect individuals from standing trial over such crimes".

Strong defence

Muthoni, who was with legal adviser in the office of the Deputy President, Korir Singoei, put up a strong defence for the government outlining the resettlement of IDPs and assistance given to victims of the violence. "The victims have become tools to be used by NGOs and people like Njonjo for their own benefits. Njonjo has not even met any of the victims he keeps talking about," said Singoei.

Muthoni and her team walked out when Njonjo challenged them to state how much had been used to compensate those who lost their kin during the violence. At one point, Korir shouted back as Njonjo was speaking at the meeting.

Victims in President Uhuru Kenyatta's case at the ICC opposed the proposal by Kenya and the AU to amend the statute and any other rules of procedure and evidence for the ICC. Lawyer for the victims Fergal Gaynor says the victims have expressed their desire to have Kenyatta face trial at the ICC because they do not support immunity. He said the victims do not see the trials as an attack on Kenya's sovereignty as argued by some those in the government delegation. “The victims would like to see justice prevail and they would like to see the suspects stand trial at The Hague," said Gaynor.

Lead image: Njonjo Mue (Photo: Bill/The Hague Trials Kenya)

*Nevins Biko is a pseudonym for a Nairobi-based journalist and blogger.