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Report of the Truth, Justice and Reconciliation Commission REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION The Government should immediately carry out counselling services, especially to those who lost their entire families to avoid mental breakdown. It is not too late to counsel the victims because they have not undergone any counselling at all. The community also seeks an apology from the Government, the reason being that the Government was supposed to protect its citizens yet it allowed its security forces to violently attack them and, therefore, perpetrated gross violation of their rights. Anybody who has been My recommendation to this Government is that it should involved in the killing address the question of equality in this country. We do of Kenyans, no matter not want to feel as if we do not belong to this country. We what position he holds, demand to be treated the same just like any other Kenyan in should not be given any any part of this country. We demand for equal treatment. responsibility. Volume IV KENYA REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION Volume IV © Truth, Justice and Reconciliation Commission, 2013 This publication is available as a pdf on the website of the Truth, Justice and Reconciliation Commission (and upon its dissolution, on the website of its successor in law). It may be copied and distributed, in its entirety, as long as it is attributed to the Truth, Justice and Reconciliation Commission and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. Published by Truth Justice and Reconciliation Commission (TJRC), Kenya ISBN: 978-9966-1730-3-4 Design & Layout by Noel Creative Media Limited, Nairobi, Kenya His Excellency President of the Republic of Kenya Nairobi 3 May 2013 LETTER OF TRANSMITTAL By Gazette Notice No. 8737 of 22 July 2009 and pursuant to section 10 of the Truth, Justice and Reconciliation Act No. 6 of 2008, the undersigned were appointed to be Commissioners of the Truth, Justice and Reconciliation Commission. The Commission was established with the objective of promoting peace, justice, national unity, healing, reconciliation and dignity among the people of Kenya. Having concluded our operations, and pursuant to section 48 of the Truth, Justice and Reconciliation Act, we have the honour to submit to you the Report of our findings and recommendations. Please accept, Your Excellency, the assurances of our highest consideration. Amb. Bethuel Kiplagat Chairperson Tecla Namachanja Wanjala (Vice Chairperson) Judge Gertrude Chawatama Amb. Berhanu Dinka Maj. Gen (Rtd) Ahmed Sheikh Farah Prof. Tom Ojienda Margaret Shava Prof. Ronald Slye Volume IV Table of Contents Foreword ................................................................................................................................. iii List of Abbreviations .............................................................................................................v CHAPTER ONE Findings and Recommendations ........................................................................................................ 1 Introduction ............................................................................................................................1 Primary Findings ....................................................................................................................7 Factors that Encouraged Perpetuation of Gross Violations of Human Rights ..................................................................................................................................... 10 Findings and Recommendations on Specific Violations and Injustices .......... 11 Shifta War .............................................................................................................................. 12 Massacres .............................................................................................................................. 15 Political Assassinations .................................................................................................... 23 Extra-Judicial Killings and Enforced Disappearances ............................................ 28 Unlawful Detention, Torture and ill-Treatment ........................................................ 29 Sexual Violence .................................................................................................................... 32 Women .................................................................................................................................... 37 Children ................................................................................................................................. 42 Minority Groups and Indigenous People ................................................................... 45 Economic Marginalization and Violation of Socio-Economic Rights ............... 48 Land and Conflict ............................................................................................................... 54 Economic Crimes and Grand Corruption .................................................................... 56 Ethnic Tension ..................................................................................................................... 57 Ethnic Tension, Land and Politics in Mt. Elgon ......................................................... 59 Reconciliation ...................................................................................................................... 61 Annex: Recommendations and Implementation Matrix ..................................... 63 CHAPETR TWO Implementation and Monitoring Mechanism ..............................................................................71 Introduction ......................................................................................................................... 71 Mandatory Nature of Commission’s Recommendations ...................................... 72 REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION i Volume IV Authority for an Implementation and Monitoring Mechanism ......................... 73 Operationalization of the Implementation Committee ......................................... 80 Annex 1: Draft Bill ................................................................................................................ 82 CHAPTER THREE Reparation Framework ..........................................................................................................................97 Introduction ......................................................................................................................... 97 The Concept of Reparation .............................................................................................. 98 Methodology .....................................................................................................................100 Priority A: Most Vulnerable ............................................................................................105 Priority B: Collective Reparations .................................................................................107 Priority C: Individual Reparations – Non Expedited ..............................................120 Victim Participation .........................................................................................................121 Financing Reparations ....................................................................................................122 Annex 1: Victims’ Reparations Fund Guidelines ....................................................123 Annex 2: Sample list of detention and torture victims who have been ........... awarded variable compensation by the courts ................................125 Appendices Appendix 1: List of Adversely-Mentioned Persons and Recommendations of the TJRC .........................................................128 Appendix 2: List of Adversely Mentioned Persons in Official/Public Reports Relating to Politically Instigated Ethnic Violence ............ /Clashes .....................................................................................................161 ii REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION Volume IV Foreword This volume contains the core operational legacy of the Commission’s work: its findings and recommendations; the blueprint for the institution tasked with monitoring and implementing the recommendations; and the Commission’s proposed reparations policy and framework. One of the most anticipated parts of a truth commission report is always the commission’s findings and recommendations. Having spent four years engaging with Kenyans throughout the width and breadth of the country, including over a year of public hearings, the expectations of those who followed the process are understandably high, notwithstanding the Commission’s efforts to educate the public about its powers and limitations. The Commission’s statement taking form provided a specific avenue through which any Kenyan could suggest recommendations to the Commission. Every witness who testified before the Commission was asked what he or she would recommend given the violations they had witnessed or experienced. The Commission was thus presented with a wealth of information and creative ideas concerning our recommendations, including recommendations for individual and collective forms of reparations. The first chapter in this volume sets out the Commission’s findings and recommendations. The findings are based upon the facts and analysis in the Report
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