Truth, Justice and Reconciliation Commission in Kenya

Sasha HartBy Sasha Hart

I spent my first four weeks in Kenya interning at the Truth, Justice, and Reconciliation Commission (TJRC) in Nairobi. The TJRC was established in 2008, with a mandate to investigate and establish an accurate record of “gross human rights violations” that have occurred in the country between 2 December 1963 (when the country gained independence) and 28 February 2008 (which marked the end of the nationwide violence sparked by the disputed December 2007 elections). The TJRC is also mandated to make recommendations as to the prosecution of perpetrators and appropriate reparations for victims.

My experience at the TJRC was interesting and rewarding. As an intern with the research team, I spent most of my time working on a research assignment on sexual and gender-based violence (SGBV) that would contribute to the final report as well as serving as background briefs for the Commissioners. I also had the opportunity to attend a number of hearings in Nairobi in which the Commissioners heard from several high profile former government ministers and army officials suspected of having been implicated in the infamous 1984 “Wagalla Massacre” (a massacre of ethnic Somalis in the Wajir District of the country’s North Eastern province). In addition, I also spent a few days in the field (in Kisumu) with the TJRC’s investigation team, where I helped to collect and summarize statements from individuals who had suffered various human rights abuses during the recent post election violence period.

As for my main research assignment, I was assigned the task of researching and writing background briefs on SGBV as it occurred in the post-election violence period, as well as in other historical contexts within the country. I was asked to focus my research by region, which was challenging because of the lack of geographically disaggregated research pertaining to SGBV. Also, because rape is perhaps the most underreported crime in the country (due to social stigma and the culture of impunity associated with this crime), accurate indicators of the true prevalence of this type of violence are difficult to come by.

From the literature and documentary material I was able to find, it is evident that SGBV has constituted a significant part of Kenyan women’s experiences during various periods of conflict within the country. For example, incidents of women being raped by security forces during the 2008 military operation in the Mandera region of North Eastern province, and by gang members seeking to punish members of opposing ethnic groups for their political affiliations in the most recent post-election violence are well documented.

While incidents of SGBV have been relatively well documented in times of conflict, and these incidents will/are indeed being investigated by the TJRC, I am left wondering to what extent a process like the TJRC can (or should even seek to) encompass the “typical”, everyday acts of rape which too many Kenyan women have and will endure. According to the 2008-2009 Kenyan Demographic and Health Survey, 1 in 5 Kenyan women have experienced sexual violence. Most of this violence has happened in the context of everyday life. These victims and their perpetrators are many and varied. As a result, the most common experiences of sexual violence cannot necessarily be associated with a particular ethnic/election-related conflict, or a military operation, or any other specific period of time in which women in an identifiable community were targeted by an identifiable group of men.

Pursuant to the Truth, Justice and Reconciliation Act, the TJRC’s mandate is limited to looking into “gross human rights violations”. This is defined under the Act as violations of fundamental rights (including “rape or any other form of sexual violence”). Thus far, the TJRC has focused on sexual violence having occurred in an identifiable, neatly framed context–mainly within the context of conflict (i.e.: the Wagalla Massacre and the 2007 post election violence). Thus far, it has identified the most pressing “gross violations of human rights” as those having involved torture and extra-judicial killings, and in setting up hearings on these atrocities, have also heard from women in regards to the SGBV they suffered in these particular contexts. Typical everyday incidents of sexual violence (perpetuated by discriminatory views of women and systemic failures by state agents to adequately respond to these acts of violence) are effectively left out of the “gross human rights violations” identified and investigated. Given the limited time frame and resources the TJRC has to complete a massive mandate perhaps it makes sense that this would be the case. Also, only an estimated 2% of victim statements submitted to the TJRC constituted direct complaints of sexual violence (which is consistent with the culture of silence surrounding rape).

The TJRC is mandated to make recommendations with regard to systemic and institutional measures that should be taken to prevent the violation of human rights. I wonder if by not addressing these most common everyday forms of SGBV, it is missing out on a valuable opportunity to address SGBV in a more meaningful way by recommending systemic remedies aimed at addressing this type of violence in the contexts it most commonly takes place.

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