CEU eTD Collection In partialfulfillment of the requirements for thedegree ofMaster of A NALYZING OFINQUIRYINTOTHE NALYZING THE COMMISSION YET ELECTION VIOLENCEINKENYA Department of Sociology and Social Anthropology Social and ofSociology Department Supervisors: ANOTHER Central European University European Central Prof. Don Kalb Budapest, Hungary Budapest, Cinderella Omondi INQUIRY? Submitted to 2009 COMMISSION By Prof. Dan Rabinowitz Prof. Dan : WAKI COMMISSION WAKI 2007 OF POST Arts - CEU eTD Collection more effective tool more effective tool for administeringTransitional Justice. Commissions of Inquiry involvedesigned to more public participation could turn them a into report, Iexamine the extent to which modifications in the structure and operation of (CIPEV), popularly known as the “Waki Commission”, as a case study. In the light of the inKenya, Violence 2007Post-Election into the Commission the of Inquiry takes this research amore of for importance durableJustice Transitional in stability societies, ethnically divided Commissions of Inquiry as a Transitional Justice tool is scarce. Acknowledging the Transitional Justice highlight Truth Commissions, while analysis of the potential use of on debates theoretical Most holders. office responsible of performance reviews that exercise seek bringenhancementto justice, thatandamanagement judicial to perpetrators processes as a mixInquiry of tooperate tend Commissions processes, between therapeutic performative Commissions. While Truth and Reconciliation Commissions tend to function as collective, that propels Commissions of Inquiry and the sensibilities behind Truth and Reconciliation ismadesociallogic the A between distinction process. as partof internal an reconciliation Abstract Countries that have experienced ethnic conflicts often set up Commissions of Inquiry i CEU eTD Collection friends for their prayers and encouragement. “help me write my thesis when she is 11 years old”! I give my deepest gratitude to family and throughout the course. Special thanks to our 6 yr old daughter, Gabrielle, who promised to pursue thisme course. to concern and diligent support. Most of all, Iam grateful CEU,to whose sponsorship enabled Department, Prof. Prem Kumar together with Kriztina Bradeanu and Ildiko Chikan for their whose knowledge andme wisdom equipped for this task.Special totheHeadthanks of further goes to the Sociology and Social Anthropology Department Professors and staff, Prof. Thomas Rooney for theirinstruction inand support writingthe My process. gratitude advicehis support, My andinsight. appreciation also goes to Prof. Andreas andDafinger advice, diligentguidance andfollow-up throughout writingthe Prof. process; Don forKalb, support of my supervisors, of whom I am deeply grateful: Prof. Dan Rabinowitzfor his Acknowledgements I alsogreatly my husband,appreciate Tom,for his andsupport encouragement thistaskhasAccomplishing beenmade consistent academicthe possible through ii CEU eTD Collection chance inlife pursueprimary, to secondary education. and university To Papa Maurison Misiko and Mama Leonida Misiko whose love and sacrifice gave me a Dedication iii CEU eTD Collection eeecs...... 47 ...... References Chapter 4: Commissions 33 of Inquiry and Transitional ...... Justice Chapter 3: 23 A Reflection on The Waki Commission...... Chapter 18 2: Kenyan Elections ...... and the Ethnic Factor 6 Chapter 1. Literature Review...... 1 ...... Introduction v List of Abbreviations and Acronyms...... iii Dedication...... ii Acknowledgements...... i ...... Abstract Table ofContents ..h aiCmiso...... 24 3.1.The Waki Commission...... 2.2 The 22Coalition Government and the Waki Commission...... 18 2.1 Kenyans go to the polls...... 1.2 Transitional Justice in Truth 11 and Reconciliation Commissions...... 1.1 The Legality and Administration of 6 Commissions of Inquiry...... 3.1.3 30 Involving “Civil Society”...... 28 3.1.2 Waki Commission: Operation...... 3.1.1 Waki Commission: 25 Set up and Findings...... okn ha...... 45 Looking Ahead...... hssSrcue...... 5 Thesis Structure...... iv CEU eTD Collection UN TRC’s PNU PEV OHCHR ODM NARC MoU KPTJ KNCHR KANU IREC ICJ – K GSU FIDA ECK CoI’s CIPEV Acronyms ofAbbreviations and List United Nation United Commissions andTruth Reconciliation Party of National Unity Violence Election Post Office of the United Nations High Commissioner for Human Rights Movement Orange Democratic Coalition Rainbow National Memorandum of Understanding Kenyans for Peacewith andTruth Justice Kenya National Commission on Human Rights Union National African Kenya IndependentReview Commission Kenya Section of the International Commission of Jurists Unit General Service Lawyers Women of Federation Electoral Commission of Kenya Commissions of Inquiry Commission of Inquiry intoPost Election Violence v CEU eTD Collection TJRC KNDR KHRC Truth Justice and Reconciliation Commission Reconciliation and Justice Truth team Reconciliation and Dialogue National Kenya Kenya Human Rights Commission vi CEU eTD Collection analyzed as tools for administering Transitional Justice. In fact, Col’s have their roots in the generally on focused TRC’s. (SeeKritz 1995; Teitel CoI’s 2000). have notoften been andpublic goods onTransitional theoretical cooperation. However, Justice have debates chances to come toan agreement on tangible things such as power sharing, distributions of come to terms with the past, deal with the emotional and spiritual wounds, and better their Justice in societies. conflict-ridden place of Transitional consider the needto we areachieved, how processes these examine responsible office holders is (Mackay reviewed. McQueenand 2003; Kritz 1997).To accountable)legally amanagement and enhancementexercise whereby success andfailure of (e.g. Seekingjustice byidentifying of perpetrators the ethnic violence andmaking them 2006, Kritz 1995,Crocker 2000), CoI’s tend as a to operate mixbetween judicial processes, TRC’s tend to function as a collective, performative therapeutic process, (OHCHR Report CoI’s and sensibilities the behindand Truth Reconciliation Commissions (TRC’s). While propels isbetween social logic A that the made distinction process. internal reconciliation of an aspart (CoI’s) of Inquiry up Commissions set often conflicts ethnic experienced asaresultethnicity, or of legacy,asarguedbyhavea colonial Countries many that authors. of by politicization influenced are the Most conflicts of these inAfrica. lines, especially deathsethnic across numerous violence and hasbeen increase in there an unrest, political Daloz 1999; Eller 2001; Mamdani Chua 2004;Klopp2001; decades, 2001).Over past the political (SeeBlanton relations. et al Gurr andHarff2001; Rothchild1994; 1997; Chabal and Introduction Transitional Transitional Justice can be very useful in helpinggroups involved with ethnic strife to Ethnicity for most authors is not primordial but an attribute to label conflicts and 1 CEU eTD Collection Reconciliation Commission. This was established by Nelson Mandela after the abolition of discussion, Iwill also refer to one TRC and one CoI: the South African Truth and analyze this Commission from a sociological perspective. To provide a broader base for isI seek biased. to has politically it, often andwhatever beenwritten partisan on or published Kenyan borders. Being a recent document, not much scholarly work has been written or because itis an international commission with possibilities of its relevance reaching beyond articles for relevant information. The Waki Commission is very important in this sense framework for analyzing this case. I will rely mainly on library texts, journals and newspaper of concerningstudy subject the are scarce. resources further says that concentrating on one case enables profound examination even when Commission, as Lijphardt (1971) says, would provide a much in-depth analysis. Lijphardt administering Transitional Justice. Using Case Study methodology to analyze this Commissions of Inquiry might be necessary enableto it tobe an effective tool in Commission,it will be shown that a rethinking and areform in the structure and operation of Justice. By examining some of the elements in the structure and operation of this study. Iwill assess the extent towhich CoI’s could also make a contribution to Transitional asacase Report”), “Waki as the popularly known in (CIPEV, Kenya, Violence Election ethnically divided societies, this research takes the Commission of Inquiry into the 2007 Post- bethisneeds to reconsidered approach broadened. and system to facilitate administrative work. (Royal Commission 1966; Gosnell 1934) However, managerial inapproach implementation publicof policy, essentially by developed Britishthe I will examine some of the existing arguments on TRC’s and CoI’s to establish a of Acknowledging importance the Transitional amore for Justice durablein stability 2 CEU eTD Collection more important and national issues. A Commission of Inquiry is restricted in its terms of system. Royal Commissions are appointed and answerable to the throne, and usually address They have their origin in the British legal system and are part of the British parliamentary seek to develop abetter framework for administering Transitional Justice. and commissions both of efficiency the examine to is expedient it believe I reconciliation, actions. Seeing the complexities that confrontefforts to promote truth, justice and atrocities charged againstthem having shiftas ever occurred, blame seek or to justify their repressive regimes, as the old regimes may still have those protecting them and deny the Kritz (1995)alsopoints out controversiesthe in acknowledgingand past the dealing with be denied natural rights, and that it is unnecessary to take accounts of victims of such abusers. should who asbeasts be treated should abusers right human some that claims note same the should be meted out to human rights abusers without affecting the social stability, while in punishmentapproach Justice that whichstates Locke’suses John (1994) toTransitional madejustice.bring are Stacey have causeharm to if them to acapacity power to attempts Transitional Justice, showing how hard it is to implement it when those who previously held in of process the encountered difficulties the Stacey out. points explores Stacey (2004) (2000:223). However, the question of Transitional Justice is often problematic initself as order” of a new political establishment the aim proclaiming that at acts all are operative measures pursued in periods of political transition are emblematic of normative change,for trials, constitutions, reparations, administrative tests, bans, or historical inquiries, the legal Israeli-Jew. 1 and Israeli-Arabs 12 killed police apartheid; the Orr Report, established in Israel examineto the October 2000 riots, in which Commissions of Inquiry investigate a specific event orissues at a particular time. In seeking to provide a paradigm for Transitional Justice, Teitel writes: “Whether 3 CEU eTD Collection reform in the structure and operation of Commissions of Inquiry. effective tool for administering Transitional Justice. To achieve this however, I suggest a this research, Iexplore the extent to which Commissions of Inquiry could also act as an past decade, but little has been written in the light of using Commissions of Inquiry too. In use of Truth Commissions as a tool for Transitional Justice has been on the increase in the Commissions, while some other writers have engaged in comparative analysis. Literature on and examine(2003) Freeman can lessons practical the that learntfrom be Truth Quinn Justice. Transitional in administering effectiveness their assessing and commissions Writers on TRC have mainlyfocused onhistorical and geographical occurrences of these onpolicy implementation. discourses comparative havefocused on writers Other countries. Manson and Mullaninvestigate (2003) into naturethe and efficacy inCoI’s of various implementation or examined historically and geographically the nature of these commissions. many writers on CoI’s have mostly laid down strategies for better formulation and policy (Quinn and Freeman 2003). point of political transition either from war to peace or authoritarian rule todemocracy. a at created and non-judicial usually They are apeaceaccord. pursuing armed opposition Commissions are temporal bodies officially appointed by the state and in some cases the (Manson and Mullan2003;Bradley 2003) On otherthe hand, and Truth Reconciliation publicall butinquiries) Executive Commissions, some they basic characteristics. share 1966, Gosnell 1934). Commissions of Inquiry may vary in form (Royal Commissions, practice to the topics stipulated under the Commission of Inquiry Act. (Royal Commission While there has been extensive research and literature on both types of commissions, of types both on literature and research extensive been has there While 4 CEU eTD Collection complimentary tools for administering Transitional Justice. Transitional administering for tools complimentary that both Commissions of Inquiry and Truth and Reconciliation Commissions are ahead in dealing with ethnic conflicts through means Commissionsof of Inquiry. Iconclude way the point finally and CoI’s of operation and structure inthe reform on suggestions some Ioffer Justice. for Transitional administering be it antool to enable effective to and operation Israel’s Orr Report. I discuss the possibilities of modification in CoI’s in terms of structure for discussion, Ialso refer to the South African Truth and Reconciliation Commission and effectiveness of the Waki Commission and CoI’s in general. Toprovide a broader paradigm special emphasis on its structure and operation. Finally in Chapter 4, I evaluate the Commission. Waki the of formation of a coalition government under a power-sharing deal, which led to the formation describingmain the thatled events to 2007 post-electionthe violence and subsequent the In Chapter two,I lay a background of ethnicthe issues in Kenyanrelation to elections by TRC’s. Ipropose a need to consider CoI’s too as a tool for administering Transitional Justice. Truth Commissions are used widely butmuch literature on Transitional isfocusedJustice on the bid toattain truth, justice and reconciliation. Ishow that both Commissions of Inquiry and and explore the notion of Transitional Justice in this context. I also discuss its complexities in two make betweenthe I adistinction Commissions. and Reconciliation of Truth Inquiry and Structure Thesis Moving on to Chapter 3, I do a case study analysis of the Waki Commission with In Chapter one, Iexaminesome of existingthe argumentsunderpinning Commissions 5 CEU eTD Collection killings, genocide, rape,torture disappearance, and severeilland treatment gross other focus onthe past byinvestigating trends of abuses and violations(extrajudicial specific Africa,South and Institute Uganda.(United States of Peace 2005;Kritz 1995).While TRC’s voire, East Timor, Ethiopia, Israel, Kenya, Honduras, Paraguay, Peru, Rwanda, Somalia, that have established Commissions of Inquiry include: Bolivia, Brazil, Burundi, Cote d’ events, limited toa specificlocation time, and individuals involved. Some of countriesthe 1.1 The Legality and Administration ofCommissions of Inquiry violence.ethnic as means toresolve exercise andfuture andavoidof perpetrators conflicts, justicethe upon Commissions Reconciliation and Truth and Inquiry of Commissions of use of understanding 2001, Mamdani Seeing2001). ethnicity conflicts broadensand ethnic as constructs the Blanton et al and2001, Gurr Harff 1997,Chabal1994, Rothchild and Daloz 1999,Eller justice those who utilize ethnicity as a tool for political and social manipulation. (See understanding of needtofindthe resolve ways to and avoid ethnic conflicts, andbring to in ethnicity. Leaningon constructivistthe approach, ethnicity as a construction the enables hence ethnic wouldbeconflicts seen as anatural inevitable and an of outcome differences the hinge Primordial biological approach. accounts the on nature of ethnicity; and geographical bewould interpreted to have Chapter 1.Literature Review Commissions of Inquiry differ from Truth Commission in that they deal with specific with deal they inthat Commission Truth from differ Inquiry of Commissions Tounderstand needthe for setting upCoI’s and TRC’s,ethnicity and ethnic conflicts not from a primordial perspective, but from a constructivist 6 CEU eTD Collection development of developmentof and byunveilingfacts policy public recommendations. designing According inthe tool be a is to inquiry the whether of question the investigate (2003) Mullan and Manson Judiciary. the and Executive the of relations the questioning by subject the of further action from resultingthe investigation. Helinks ithistorically on attacks on liberty the carryinvestigationsto involvingout of theexamination witnesses with aim the exercisingof government is Executive questions of the whatMoore the power structure, andNew Zealand Australian the to With reference testimony. aconvincing to offer strength from legality their their acquire Executive Commissions Moore (1913), to above. According characteristics investigativeinquireincludeissuesspecificlack other that but eventsor into tools the to expand thecategory to be should it considered subject, detail the on comprehensive complete with recommendations that is almost always released to the public. (p.3). provincial and may referto itself as “Royal Commission” or not and it culminates in a report to the Executive powerswith asprovided by a previously legislated statute, Inquiries usually an Act; may it be federal or It is appointed by the government with aprecise mandate as an these variations, Manson and Mullan (2003) say this of a Commission of Inquiry: (Royal Commissions, Executive Commissions or public inquiries). While acknowledging may cover a wide range of subject matters unlike TRCs; hence a CoI may vary in form: tribunals ofinquiry should beappointed only in cases of concerngreat to public.the Topics Act. (Royal Commission 1966; AccordingGosnell 1934). Royal tothe in Commission 1966, of Commission Inquiry under the topics stipulated of the inits to practice terms restricted throne, and usually address more important and national issues. A Commission of Inquiry is British parliamentary system. Royal Commissions are appointed and answerable to the Commissions of Inquiry investigate a specific event orissues at a particular time. violations ofhuman rights) over aperiod of time,( Crocker2000; Quinn and Freeman 2003), Manson furtherinand Mullan(2003) claim todrawupamore that order Commissions of Inquiry originated in the British legal system and are part of the 7 ad-hoc response to some public event orissue CEU eTD Collection justice and improvement injustice managementinstitutions. and improvement of Fitzgeraldgovernment the However, to culprits bringing in was effective that acommission of example isagreat this can seethat We Police. of Commissioner the as well as ministers 3 of jailing Premier, the of resignation forcedwhich and the corruption force police government within the revealed the rampart Commission Fitzgerald the claims Hamer findings. its complete to Commission theFitzgerald difficultiesthe in setting and running a commission,it explaining2years that took for once set up, a request for extension of time, and widening terms of reference. He points out to Commission the deny to difficult it find may a government that claims He is known. answer the Commission, of outcome the control to is unable it citing process; in the when government the to theembarrassment old adage that a commissiona Commissionshouldup set never to have may a government be allegations, serious with setfaced when However, up misconduct. unless the of are Inquiry. of ineffectiveparliaments graveallegations often ininvestigating government Hamer howeverjudgment, for example call for resignation for those responsible. warnsexecute to power lackthe further still and system previous the of workings explain the that ithim,alsocause to.Accordingdirectlysuch and to of maynot who points inquiries the setting conduct occurring within but government’s the department fail establish to theimmediate up ill the to a point may Inquiry an CoI that says further Bradley obsolete. somewhat and insufficient, could is them about literature British extensively, grown have be Inquiry of Commissions although an claims Executive.Bradley independence the of powers (2003) that of the and Judiciary the itjudges, arguingis that animpropercompromise of principlesthe separation of the of ironically,that out point they but Branch, Executive the of instrument essential an are inquiries them, to its composition is drawn from the Judicial Branch. They question the use of Concerning the corruption of police force in Queensland, Hamer (2004) claims that (2004) Hamer in forceQueensland, police of the corruption Concerning 8 CEU eTD Collection blame or required to be accountable. Blaming in this case is often justified by argument the justified caseisoften in this Blamingbe accountable. requiredblame to or receive to likely is representatives its of one or government if the CoI’s, in be problematic to the concept of blaming as they explore the notion of accountability. They claim that it proves andMcQueen (2003) examine Mackay Transitional accountability. of question isthe Justice in theeffect role and of of violence exacerbating Inquiry. weakening Commissions 4,playsmajor inchapter be a and forcesaswill discussed police of compromise government public officialsCommissioner. Walteroperations. Heclaims (2007)the deal empowered the Police Association at the expense of the Police toalso warnsfurther about and of Police government separate the needthe Association’s warning Commission, a to misuse of media their Fitzgerald the against byis goes he This acompromise that argues act, support. their electoral police force ownand othersecure to Association Police the written deal with a secret into entered Victorian government interestsconfined nor new, to neither is theand corruption police of problem Victorianthe that citing Commission, Fitzgerald attack government. He claimsopponents. that prior to the 2006 state bemore effective. need to redress elections,The Inquiry of Commissions which in position critical is a problem this believe the also I unattended. left are ofwhich mostly but responsible address, should which parliament the and consequences, their operations government into investigate commissions that out points also He judges. without powers of ExecutiveandtheJudiciary the Col’s thatand be claiming could still effective argues against use the of a judgetopreside overacommission,separate citing the need to and costly embarrassment as its effect (Hameroperation judiciary. on Furthermore, 2004) the government from apart Col’s, with problem another out points also Commission One of the major concerns in Commissions of Inquiry in seeking to administer need hand, tothe learnfrom WalterOn other lessonsof the (2007) points the the 9 CEU eTD Collection emerging democracies can choose selective prosecution, purges and even Commissions of andevenCommissions selective purges prosecution, canchoose emerging democracies these and toachievejustice in order peace, further that says justice.peace and He both transitional times buthe itargues that is possiblefor consolidating topursue democracies Transitional Justice. Sriram (2004) points outthe difficulties of achieving justicein and peace into ethnic conflicts,could covera focuswide range of inthis topics, I on Commissionsresearch, only of Inquiry seeking to show thatissues that in their presentlike form are unable toaccomplish. Given that Commissions of InquiryTRC, this tool couldBroadening themore category explore accesswould allow CoI’s andpowerto morein- depth be used to administernature. bureaucratic to their largely inflexible, hasbeen due in of Inquiry Commissions because importantisconsideration Commissions lackof power an the thisInquiry, I think of its and intostructure requiresoperation. are-examination iscrisis. noteworthy in It this that crippling of Commissions tendency Inquiry’s effectiveness appear toinvolvemisconduct, adisaster, government systemic problems orsome other public that incidents covering matters federal into inquiries establish to in Canada Commissions completebarred from eithertheir preventinginterestsvested and highly They is governments shouldpolitically suggest that driven. be thehas usually Commissions establishment these of authorization government mission.claim; as they involvement, of CoI’s or close(2003) arguethat Commissions should independentInquiry betotally of of government them down beforeThey and Macklem Centa increase accountability, they To recommendation. an Inquiry’s implement proposeloses interest as curiosity publicbeen the involved quickly have released, names once people the arguethat of further a reorganizationdies down and everything action is that be taken.Mackay appropriate before unraveled and McQueen (2003) there isn’t much pressure placed on politicians to and empowerment of Law Following the suggestion by andMullanManson (2003)tobroaden category the of 10 CEU eTD Collection Peace 2005; Kritz 1995). Truth and Reconciliation KritzCommissions arePeace usually non-judicial and Reconciliation 1995).Truth 2005; Sri Korea, Institute of andAfrica,Lanka, Uganda, South States Zimbabwe.(United Uruguay Leone,South Sierra Yugoslavia), Philippines, Serbia and Montenegro(former Panama, Peru, Chad, East Timor, Ecuador, El Salvador, Germany, Ghana, Guatemala, Haiti,Nepal, Nigeria, legalizenew policies. or order new political abuses create for a of past accountability and/ or enhancenational authority, reconciliation with towards comprehensive aredirected report, These andrecommendations. conclusions with organizeda numberof through andprocedures a processes aimof the delivering They for agiven particular conflict. of timeexistperiod mandate with and a specific are rights abuses over Commissions Reconciliation and inTruth Justice 1.2 Transitional a certain period of time in particular in hencemy research. this conflicts; exploration toresolvein ethnic seeking as fortools administering Transitional isnotonly Justice countrydesirable butpotentially profitable or Transitional isJustice. It in my view thatfurther into research use of in Commissions of inquiry connectionand Inquiry of Commissions on little but Justice, Transitional and TRC on research to a and literature lotof is a Justice. There Transitional means of administering an effective Sriram claims. However, I see the need to find ways of improving CoI’s to empower them as pursued cautiously.believeboth justicepeace andin be I can transition pursued as times be should hence these justiceand and between truth balance is know thatthere adelicate to need leaders wise that claims further He option. best the be may they that asserts but justice, ensure total maynot methods these that further argues He thepast. expose Inquiry that Some of the countries that have established Truth Commissions are Argentina, Bolivia, Argentina, are Commissions Truth established have that countries the of Some Truth and Reconciliation Commissions are created to research and report on human 11 CEU eTD Collection a weak civil society, political upheaval, victims’ security, and comprised administration of administration comprised and security, victims’ upheaval, political society, a weakcivil may all hinderthat terms or some of above goals, includeinadequate the andthese reference, capacity to: the Commissions. Reconciliation and Truth of efficiency raisedconcerning the the arguments of examinejustice. some Iwill truth andcontingency of the or justice, retributive without be exercised should forgiveness is whether arguments is inmost What render the of demandedbyjudicial of justice kind contested these processes. pointVejarano Truthand(2000) due out, Reconciliation Commissions cannot,totheirnature, Hayner Kritz 2000, Teitel 2004, Crocker 1995;Stacey 2001; 2000). AndasAvruchand includingjustice,of law. tribunals courts and (Roht-Arriaza and Marriezcurrena 2006; forms of involve other see aneedto that by researchers up especially is taken often justice preventfuture violations andhealing bring tovictims and theirfamilies. This problem of can byconfession just theguilty pardoning whether areconcerned They reconciliation. conclusions and recommendations (Quinn andFreeman 2003). of trends violations of andspecificwith overabuses timea final submit aperiod and report by investigating past the on focus democracy. They to rule authoritarian peace or war to from either transition a pointof at political They created are accord. ina peace aswell opposition bodies, sanctioned, authorized or empowered by the state and in some cases the armed Notwithstanding these noble goals, Quinn and Freeman are quick to pointNotwithstandingto theobstacles arequickto Quinn thesenoblegoals, andFreeman Quinn Freeman and (2004) claim applicable TRC’sthat thoughnot in every have context and truth justice, of notion the question authors many nature, non-judicial their to Due consolidate a democratic transition; and serve as a safeguard against revisionism. (p.1120). revisionism. against safeguard a as serve and transition; democratic a consolidate institutional reforms; provide a public platform forvictims; inform and catalyze public debate; help to violations; cultivate reconciliation; recommend victim reparationsnecessary and legal and help establish the truth about the past; fosteraccountability forperpetrators of human rights 12 CEU eTD Collection lesser suspects and crimes, and that apart from South Africa that offered conditional amnesty inCommissions. Truth Call the cites possibility for truth-tellingsuppressbodies trials forto inherentjudicial outtothe serioussecond-bestalternative problems butpoints punishment to bringing social processes and consequencesinto light. He seeshope in Truth Commissions as by rights human of bias individualistic inherent of a redress enabled have they that asserts Truth Commissions as justiceby imbalanced extensively tools, working at endingtheir application.Heidentifies tools that transitional offer current the of flaws and unfairness the of unusualacknowledgement honest more a for contributions need the He proposes flaws. deep reveals Justice Transitional thatof a closer scrutiny that argues judicialhe However, justice. global for hope and trials sovereignty state on had have Justice cannot,Transitional and conflicts. most it inblurredisissues as are typical with that many and deal cross-examination, judicial brutal revealingnon-judicial better areclaim at which wouldn’t methods bespoken at a that truth they However, Commissions. Truth the up setting one is the in atrocities the participated that government if the Justice, Transitional of notion very the question Mariezcurrena Roht-Arriaza and 2006;Call2004). seek andMariezcurrena (Roht-Arriaza reconciliation. or informer toovercome wrongthe doingsconfront social order divisions repressive regimes of rule armedby legal Itiswith atrocities. to repressive or responses past conflict characterized means toadministerJustice. Transitional as my argument, on central andinfocusing conflict, resolve ethnic asatool to Commissions and Reconciliation of using Truth andlimitations explore complexities the seek to scholars, I justice. Revisiting points the above through argumentsthe raised byother researchersand On the other hand, Call (2004) sees the enormous influence that instruments influence of hand, Call (2004)seestheenormous On theother that from a“transitioning” justice, of asaconception be to referred may Transitional Justice 13 CEU eTD Collection actions. However, he sees the need for a comprehensive official accounting of as a past of the accounting official for need acomprehensive heseesthe However, actions. says somethat may still have thoseprotectingthem, shiftblameseek or tojustify their further He occurrence. deny the atrocities the with charged if those may bedifficult regimes deal Kritz and claims acknowledging out. points with repressive thepast attempting to that human rights abusers, whether the rights of the abusers will also be violated.. doing, Stacey presents adilemma locked in in Transitional Justice: attempting topunish natural rights,be denied should who beasts as and treated be should abusers that right human some that itclaims is unnecessarynote same in the but solidarity, social to maintaining take while abusers rights human to out accountsmeted of victims of such thatpunishmentshould be Transitional whichstates Justice, to Locke’s (1994)approach abusers. In so John uses justice. Stacey to them bringmade to are ifattempts cause harm capacity to Justice, showing how hard itis implementto it when those who previously held power have a many authors. progressingtransitioninto a smooth TRC’sareevidentasarguedby toolsthe such usingas of goals challenges signifying establishing anew change,the political normative of order, that they all work normative Sheasserts symbolic change. towards of as transition measureslegal pursuedinpolitical all are thewhich inquiries, historical and creationbans; tests; administrative reparations; constitutions; of a new political system. In spite of the of the complexitiesessential in dealing with Truth Commissions as instruments of Transitional Justice. is however, partpossibility amnesty also The duetotheirperpetrators and actions. policies of most who TRCsarefully confessed, from unabletoobtain for perpetrators accounts detailed Transitional Justice poses both a controversy and a necessity to act as Kritz (1995) Transitional inof process the encountered theobstacles explores (2004) Stacey trials; regards Teitel (2000) Justice, Transitional advanceof the cause to In seeking 14 CEU eTD Collection establish as it is impossible to empirically quantify or verify. Crocker further emphasizes that emphasizes further orverify. Crocker empirically to quantify is impossible itestablish as to difficult very ishowever “truth” of kind This ones. loved their and on victims impact physical and psychological asthe truth”, “emotional identifies Healso time. and location identifywhat to moral legal occurred together with victim,and right the the perpetrator, need to reveal truth about past atrocities by identifying “forensic truths” as the hard facts on truth” actuallyof what happened, as Avruch (2000) pointand Vejarano out. as being iscreatecontested This bound alot relative. to the“real inestablishing of obstacles other hurdles in dealing with the past; as elusive as justice. The very notion of truth is often be asshall are seen, truth reconciliation.and But reconciliation and about bringing truth the on TRC’s, sees Kritz very them as vital in tools dealing with past abuses by acknowledging system, citing the case of former Yugoslavia andRwanda. With a realistic limit on mandates setting acompromisedjustice tribunals, local as or upof beneficial to practically compared and outlines similar setbacksraisedby Quinn andFreeman (2004). for prosecution of limitations TRCs useasasubstitute the recognizes Kritz TRC’s. However, locally impartial, henceis body recognized and paramount; internationally isaneedthere for and legal a by abuses past of acknowledgment the occurred, had that much relatively use TRC’salready knew that although many countries necessity.that its Heargues asserts However,(1997: 2). heacknowledges pain andsensitivity the of with but dealing past, this by the perpetrators ofneed todeal with thethe facts and consequences of their past.violence He also claims that societies ruined should of dealing argues Kritzboth this. with (1995) victims that andperpetrators of formulatepast abuses strategies way asone commissions” “truth citing transition, democratic asuccessful means of creating to confront their “demons.” This notion of multiplicity of whoThis notion by Crocker (2000) ismultiplicity highlights the of truths of taken up In spite of the challenges, Kritz maintains that TRC’s could prove to be more 15 CEU eTD Collection reconciliation is necessary for enemies to coexist without further violence by adhering to the by to further adhering violence without tocoexist for enemies is necessary reconciliation TRC’s. of problem another is also reconciliation of notion the but reconciliation, encourage and truth for solicit to mechanism a as used been has Amnesty happened. actually has reconciliation and bewill atrocities future establishedis as would heighten and noproof there forgiveness that necessarily meanthattruth not does blanket amnesty,non-prosecution offer asthis of against further argues system. judicial Hayner averyweak to asacompliment serve and decisions justicecontributions to prosecution. and Sheclaims judicial-like they should execute be used can,andinsists likely as positive thatTRC’s most will extensively contrary, she On have advocates the and suggested. authors some human rights as alternative second-best justice, and instead sees TRC’s, neither as non-judicial replacements for prosecution, nor as replacing againsttruth Hayner justice, argues versus truth of leadership. question the On willbe“truth” interpretation by of determined personality its of and personal priorities and Sri Lanka, and thisto looking atonly a portion forof exampleabuses, the disappearancesArgentina, of Uruguay restriction limits the truth told. Hayner claims outcome. resulting of the direction that a Commissions truth, they argue that victims could be retraumatized and left with open wounds with no clearfactual information but not necessarily a common understanding. And is seeking to reveal produce makes them TRC’s This according to “truth”. issingle a assumption there that recognize theif it public andfacilitate would (2006)also deliberation. Mariezcurrena Roht-Arriaza problem ofit isnot sufficient todiscern truthtruth, but that that truth should be released to the public, more so as they say the problem with Truth Commissions is the Crocker (2000)addresses bysuggesting problem that of Crocker this reconciliation arerestricted TRC’s some that claiming angle, a different from argues Hayner (2001) 16 CEU eTD Collection of Inquiry on the other hand are widely usedThe notions of justice and truth, reconciliation still ground.Commissions acontested remain in a range of subjects. In this research, system. judicial compromised or is a weak there where incases oflaw, especially courts the I focus in toretributive justice justice asopposed form restorative of alternative TRC’s arethebest by verynotions justicequestioning the of truth, andreconciliation. Manyhave concluded that authors have than Most justice legality inachieving reconciliation questionedthe others. of countries in some success with considerable Justice Transitional administer to extensively Justice. Transitional suggest areflection in I toadminister useof the Inquiry on of research, this too Commissions and possibilities, other for aneedexplore to calls field.This acontested arestill in transition justice a true in accomplishing complexities oflaw. the incourts However, justice retributive against justice, restorative meansof alternative appropriate an considered generally is Justice Transitional inadministering of TRC use The forgivable. and understandable case inevitable,violation some political of transition, maybe desirable, of of principles the inJustice claims some mayhelp reduceor eliminate (2004) of Elster these problems. that However considering Commissionsof as Inquiry toolstoo for administering Transitional mayTransitional JusticeTRC’s when through seemelusive we considerthe setbacks. Achieving moral andencourage pretentious confessionsand remorse. autonomy orguilt justice,forgiveness ashe victimswithout a compromisesees thisbeing to and perpetrators religious inclination forgive. howeverto Crocker implementing argues against this a with societies in be possible may TRC through reconciliation of avenue the that suggests instead it violence. He future is prevention for of andthat a actually taken place guarantee has not meanforgiveness does out, this merecoexistence as he rule, but points state’s Overall in would I chapter, this like reinforce TRC’sthat to have been used 17 CEU eTD Collection which the ODM movement, which voted “no”, won against the incumbent’s party which the outcome of the vote on the referendum of the proposed new constitution in 2005, in Odinga, of the Orange Democratic Movement, (ODM). This may have been largely due to Mwai Kibaki of the Party of National Unity (PNU) trailed behind opposition candidate Raila change. Prior to the elections, anumber of polls had indicated that the incumbentPresident many people of strengthening the institutions of democracy, primarily in bringing about among anticipation great was There elections. multi-party fourth country’s in the voting 2.1 Kenyansgotothe polls Kenyan 2: Chapter ElectionsFactor and theEthnic Justice. research in the use of Commissions and literature more of possibility the of a discussion up and open explore area this seek to of Inquiry too, toas Commissions a tool for of Inquiryadministering and Transitional be donewith regards to researchneeds more Justice, TRC and Transitional on andLiterature TransitionalJustice; hence the exploration hasof While beenalot research there Justice. Transitional administering for tools effective of this research. I the structure and operation of these tools might benecessary so that they too couldbe used as by lightlyare A as public the by intreated authors. reform discussed most and governments they hence recommendations their of implementation in power lack they countries, many in widely been have Inquiry of Commissions though Even Justice. Transitional to contribution on Commissions of Inquiry into ethnic conflicts, showing that they could also make a On December2007, amajority 27, Kenyansof exercised theirby right democratic 18 CEU eTD Collection Chr. Michelsen Institute.(www.cmi.no/publications) 2006:13 “OfOranges and Bananas: The 2005 Kenya Referendum ofthe Constitution.” Working Paper No.13. former President Moi’s choice candidate, Uhuru Kenyatta. For moreon this (See Andreason and Tostensen Momerundum of Understanding (MoU) prior tothe 2002elections in which Raila joined Kibaki indefeating the President to create thepost of an executive Prime Minister, which Raila was to fill, asagreed inthe The proposed new constitution wasrejected by 57% against 43%. The rivalry was rooted thein failure of the camps: Bananas led by President Kibaki, which voted “yes” and Oranges, led by Raila Odinga which voted “no”. 1 “yes”.voted about the outcome of the election, the Chairman of the ECK, Mr. Kivuitu, who claimed he later interviewed deeply flawed. When and were election the that results process observers local concerns from in international ceremony,sworn despite and as President a private along ethnic lines. President Kibaki, of the Kikuyu ethnic group was hurriedly and secretly President Kibaki, the winner. Immediately after this announcement, the violence escalated announcement of whohad won election, reigned. confusion (Thompkins 2007). to the streets, looting shops, causing damages and blocking traffic. Since there was no official already streamed in. There was mixed reaction: excitement, fear, joy, and anxiety. Some took hands. The ODM party declared themselves winners based on the tallying of votes that had of the election results. The call went unheard, and the opposition took matters into their own andgave protests demanding wayto supporters violence, with opposition announcement the results were withheld, creating tension vote and suspicion of rigging. The mounting tension showed Raila Odinga ahead of President Mwai Kibaki. (Dagne 2008). However the final constituencies, according to the Electoral Commission of Kenya (ECK). Early election results vote,in while Parliamentary torun werequalified were registered to candidates 2,547 210 with common citizens. An estimated 14.2 million (82% of the total eligible voters) Kenyans his proposition, including RailaOdinga.however Thisact strengthened ODM’s popularity On 21 st of Nov 2005, a referendum ona proposed new constitution was held in Kenya with two referendum Finally after much coaxing, the Chairman of the Electoral Commission declared of Commission Electoral Chairman the much the coaxing, Finally after 1 After the resounding defeat, the President sacked all the ministers opposed to opposed ministers sacked all the President the defeat, resounding the After 19 CEU eTD Collection Waki Commission a death toll (Omangaof 1,020. 2008). These figures werehowever raping and other horrendous crimes took place. The Ministry of Health reported before the inciting violence. 2008) the (Matheson for was implicated KANUgovernment and the then period, campaign placethe within have mightelections been lessened.avoided or andthe1992 Both violence 1997election took were never implemented. Had they been, the violence that was experienced in the 2007 Akiwumiwas later Report setup to investigate into land the its clashes, but recommendations indigenous coastal communities against “foreigners” such as Kikuyu, Luyha andLuo.The The 1997 elections were also equally marred byviolence, only itwas mainly by attacks deal with the rise of these “clashes” in their accounts of Kenya’s process of political change. political liberalization in Kenya. However, she points out that many transition theorists do not witnesses all strongly suggest that violence was strategically set to counter the onset of compromising behaviormany of inactors Kenyan the government, together with many displaced within a period of two years. Klopp (2001) claims that the timing the “clashes”, the Kikuyu, Kalenjin,Luhya inand Luo, which approximately died,1,500 people and 300,000 party politics inKenya,resurfaced wasmarked byelection violence overland, between alongconstituted ethniclines from majorthe groups. ethnic The 1992 elections, multi- after swear-in Kibaki. (Ongiri, 2008) ready to there, Justice found Chief the and certificate Housetotake the State he at arrived Heclaimed bylaw doso. he while wasmandated alone that to certificate, election results the collect to some people threatened that claimed Hefurther Kibaki election". the won whether had actedunder pressurefrom some powerful politicians, revealed this: "Idonot know However, the 2007election violence wasunprecedented; burnings,killings, maiming, Ethnic have tensions marked often Kenyan elections asparties are generally 20 CEU eTD Collection have played a major role in the nation's political and social development. The estimated constitute the largest single ethnic group in Kenya, live for the most part north of Nairobi and largest hunter-gatherer community – areincluded. (Matheson 2008).The Kikuyu, who communities in Kenya,if minority indigenous groups such are Ogiekthe – probably the recognizes althoughKenyan 42ethnicisstate it groups, over70distinct estimated Ogiek hunter-gatherer community, pushing them from away theirland. Officially, the Kikuyu in in Nakuru, Rift for valley example attacked and burned houses of indigenousthe Luoethnicthe 2008). Talbot group.( gunshots by police, with majority of those shot being protesting ODM backers,mainly from primarily ethnically based, butironically, highest deaths the that occurredwerefrom mayhem,causing forcing eitherto flee group for refuge. The violence wasconsidered outraged by the election results. They went on a rampage, pulling out the railway trucks, had hoped an election of the then opposition leader would improve their conditions, were there was direct affront, mainly between the Kikuyu and Luo. The Luo and some Luhya, who from police forces. A large number died from bullet wounds. In the Nairobi’s Kibera slums, butfaced fiercecombat They Raila“own” their Odinga. President accept another notcould Kisumu town and its environs, a stronghold of the ODM was in chaos with protesters who experienced from Kalenjin violence the whodemandedthey back totheirgo lands. original torching houses and killing people, in a bid to reclaim their ancestral land. The Kisii also violence Kalenjinsin from especially Valley mobilized Rift the andattacked who them, Kibaki , experienced be of President backers to chief the andperceived independence, since 300,000. When violencethe broke out, the Kikuyus,have who Kenya’s dominated economy 1,500at by some Human groups. Rights The 2007PEValso sawadisplacement of about isestimated toll death the hence mortuaries; private and hospitals public from only obtained It must however be seen that the violence did not just involve these tribes. The 21 CEU eTD Collection public immediately, although names the of perpetratorsthe werewithheld pendingaction Mwai Kibaki to President recommendations on 15 Philip Waki, hence the “Waki Commission.” The Commission handed its findings and Commission of Inquiry into the Post-election Violence, (CIPEV). It was chaired by Judge the tensions within the government, Dr. Annan called for the formation of an Independent back dated some grievances to timethe resolve Kenyaits independence. Seeking to attained will violence; resolve seekgovernment post-election problemsprecipitated the the to that holds.(Wachira 2008). of the Prime Minister post, for the then opposition leader, Raila Odinga, a post he currently General, Dr. Koffi Annan. The coalition government was finally installed with the creation much brokereddeliberation; a power-sharing by deal was struck, UNSecretary former the power according to majority strength in parliament. This was objected to by PNU and after Raila Odinga,declined butlater vehemently insisted on a coalition government, sharing election results and join the government for the sake of unity. However, the ODM, led by accept the to for theopposition called He and healing reconciliation. national and seek Upon being sworn in, President Kibaki called on the Nation to unite, put aside differences PNU supporters and sympathizers maintained that they won electionsthe fair andsquare. victory.ODM supporters insisted on the resignation of the incumbent President, while the andtheWakiCommission 2.2 TheCoalition Government population. (Encyclopedia Nations: of the Groups) Kenya-Ethnic Non-Africans (Arabs, Asians, and Europeans) account for no more than 1% of the Kamba 11%, Kisii 6%, and Meru 6%. Other Africans constitute 15% of the total population. proportions of major the groupsareKikuyu 22%,Luhya Luo13%, Kalenjin14%, 12%, This deal brought tentative calm in the country, with many hoping the coalition The violence across ethnic lines persisted for weeks, with both parties claiming 22 October 2008,anditwas released to the CEU eTD Collection chapter, I will examine the Waki Commission with the aim of suggesting ways in which it in which ways suggesting of aim the with Commission Waki the examine I will chapter, In this itdoes. claims (2009) Wainaina than have what teeth” “sharper to needs perhaps opinion, a reform might be necessary to make it amore effective tool. The Waki Commission my In operation. Waki are ahindranceCommission’s that tothe are infactthevery flaws society. However, civil what Wainanafrom does not address is protests that some of the flaws he points out in the TJRC notwithstanding consultation, public little with President similar to an amnesty commission. He also says that this commission was ratified by the Waki Commission, but instead he claims that it is deeply flawed; owned and run by the state, benefits all citizens. Wainana further claims that TJRC should have “sharp teeth” like the TJRC. Civil participation he argues will ensure the TJRC process is executed in a way that discussion. Wainana According to (2009),civil isparticipation crucial in efficiencythe of independence. The findings of commissionthis are still itsunderway and operation under investigate historical gross human violationrights dating back since Kenya gotits team (KNDR) created the Truth, Justice and Reconciliation Commission (TJRC)in 2008 to Chapter 3:A Reflection on The Waki Commission society forto demand justice and accountability. has lefta bitter legacy but the official inquiry into the turmoil is an foropportunity civil Commission, Prunier (2009)writes the that post-election violence in Kenya inJanuary 2008 disputed election results.(Barno2008). Commenting on establishmentthe of Wakithe was set up to investigate into the performance of the Electoral Commission that led to the 2008) (Onyango-Obbo recommendations. in implementing the be by to government taken action further the Apart from the Waki Commission, the Kenya National Dialogue and Reconciliation This report came out after another similar report, the Kriegler Commission, which 23 CEU eTD Collection into the post-election violence (CIPEV), popularly violenceinto post-election known (CIPEV), the was setup. as the“Waki Report” Inquiry of Commission the that Commission independent totally another, of formation on very much in andquestion its findings were disputed.Itis upon these premises andinsistence investigate into the operation of the Electoral Commission of Kenya. The validity itof was (See Report, Government of Kenya, 2008) TheKrieglerReport which was set upto Report 1999 ), its recommendations still wait tobe implemented. Then there was the Kriegler 1992 clashes, the Akiwumi Report was set up. (See Government of Kenya, the Akiwumi eventual implementation of the proposition made by this commission. For instance, after the and outcome the about skeptical were Kenyans ordinary Many inquiry. of Commissions orchestrating the violence, was a bold step, especially if one considers the trend with past completion of the report, notwithstanding the implications of some state actors in Justice. Transitional a for administering tool effectively as case analysis, Iintend to show how Commissions of Inquiry could be improved to act more there is a rethinking and reform of its structure and operation. Using this Commission as a it would have had more potential to accomplish greater goals, if as in my central argument, accomplishment. However, acloser look shows that a lotmore could have been revealed and 3.1.The Waki Commission Justice. Transitional couldbe and reformed be instructure operation amoreto effective tool for administering The release of the findings of the Commission to the public immediately after immediately to the public of findings Commission of the The release the A general look at the Waki Commission gives the impression of a comprehensive 24 CEU eTD Collection Dialogue andReconciliation team also formed the IndependentReview Commission (IREC), National The Commission. the by with dealt issues the covered expertise of areas whose with various international Panel negotiation consulted Reconciliation organizations The team. Dialogue and with Kenya consultations the following African Personalities Panel Eminent of by identified the were members international thetwo while team, negotiation Reconciliation Chief Justice of Kenya on 3 June 2008. The chair was proposed by the National Dialogue and (Kenya) andCIPEV’S Counsel Assistant,David Shikomera Majanja, in all sworn by the Kegoro George was Commission to the The secretary Congo). of Republic Democratic Kenya),Appeal, GavinMcFadyen(Member,NewZealand)and Kambale, Pascal (Member, wereasfollows: in Kenya Gazette the Commissions of Act. CIPEV’s terms of reference published by the President, Mwai Kibaki, the President, Mwai Kibaki in exercise of the powers conferred by section 3 of the 2008 on May 23, 2008undertheCommission of Act(Cap, 102LawsInquiry of Kenya) by SetupandFindings 3.1.1 WakiCommission: e) d) c) b) a) According to CIPEV, the CommissionGazette 2008) may deem appropriate,comprised and to report its findings and recommendations withinthree months. (Kenya Make such recommendations to the Truth,of: Justice and ReconciliationCommission asthe PhillipCommission Waki (Chair, Judge of references Perform any other tasks that the Commission may deem necessary in fulfilling the foregoing terms of necessary; as recommendations make and violence, of course the during agencies security ofState omissions or actions the Investigate presidential election; 2007 the followed that ofviolence acts to related circumstances surrounding and facts the Investigate The Waki Commission was inratified Kenya Gazette Notice Nos.4473and 4474 of Recommend- iii. iv. ii. i. necessary; Suchother legal, political oradministrative measures as the Commissionmay deem Measures to eradicate impunity and promote national reconciliationKenya; in acts; Measures with regard tobringing tojustice those persons responsible forcriminal future; in deeds similar of occurrence the eradicate or control prevent, to betaken to Measures 25 CEU eTD Collection 2 wasclaimed It violence. of largely the escalation the to contributed security agents state the of stateforces,the itwas reported that a lack of preparedness coordinationand poor among carry long theconduct to distances theviolence.out travelled some perpetrators Concerning as affiliation political and ethnicity werebasedon attacks was systematic: theviolence that funded by some politicians and businessmen. (P.Viii). The Commission concluded finally areas. (P.66). A sobering finding was the fact that some of the violence was organized or in spontaneous some areas,while in well in andorganized planned others some geographic Kibera, Nairobi. A significant finding of the Commission was the pattern of the violence: often lines;running across ethnic amajor cause slum basedof violence in such areas as seeking to benefitfrom the presidency by electing one of their own. (P.28) Presidency, which remains to be a catalyst for election related violence with each group A business leaders. issuecentral was discussed immensethe invested power in the disarm these militias in the past provided an avenue for their utilization by political and clashes, addressed in the Akiwumi Report. The Waki Commission concluded that failure to by militias,according armed who report the the to mainlywere bredin previousthe ethnic in years.Kenya violence the over was exacerbated This institutionalized a trendthat revealed ethnic wassimilar in post-electionclashes tothe violence the (PEV) 1990s, that the reported these andothermatters.( concerning make recommendations surrounding the violence, the conduct of state security agencies in their handling of it, and to violence. electoral which primarily dealtwith all of focusedaspects 2007elections,the CIPEV while on the I will hence refer to all quotes and references from the Waki Commission by page only. Among itsfindings was and widespreadthe inequalities marginalization, economic The mandate of the Waki Commission was to investigate the facts and circumstances 26 2 Commission 2008:vii). It was CEU eTD Collection position on extra-judicial killings before the UN Security Council. (Omanga 2009). However, peoplethe holding key the seeksoffices. Minister The now defend to Government’s the targeting willbedonewithout only Hefurtherreforms that “surgeon.” asserted institutional governmentcarrieda “judicial out surgery” whichended upkilling both “patient”the and the Waki, the Chairman of the Waki Commission, the Minister claimed that in the past the andinits arguedagainst exaggerated recommendations. presenceof Speaking the Justice 2009). The Justice Minister, Mutula Kilonzo claims that the Alston Report was highly standards necessary for conviction in a courtoflaw. (See Leftie and Mathenge 2009;Kilner such that if shouldbe meets only allegations therelevant investigated information the Commissioner claimed The from Commissioner. lack Police a the obstacles, of cooperation confirmed most of the allegations. Nevertheless, he claimed that he experienced among other extra-judicial on killings, Special Rapporteur UN by a investigated who Alston, Prof. according report, people tothe looked for helpto but instead they fell pp 237-267) culprit.( significant number of security forces (GSU) and regular Administration Police, who children. Itwasreported that gangthe rapeswerenot only done by ordinary citizens buta and men and women both of organs sexual of mutilation and rapes individual and gang (P.311). The Commission also received reports of horrendous sexual violence,in form of total of 117,216 private properties and 491government property owned were destroyed. death in the PEV.I t was also reported that 3,561 people suffered various types of injuries. A of gunshot by police, representing 35.7%, makingthus highestthe gunshots single causeof reported atotal of 1,333 deaths. Outof total,accordingthe 405 tothisreportweretheresult Commission The manipulation. political and procedures policing clear of absence the that the efficiency of the Kenya Police and Administration Police was negatively affected by These allegations of human rights abuse by police and the military further military abuse by and rights were human of police the These allegations 27 CEU eTD Collection Province, Central Province, and some parts of the Rift Valley. The Commission was careful it visitcouldwere Western not areas Key with witnesses. interviews areas andconduct Commission cited difficulties in carrying out its duty by being unable to visit some of the the allocated, time the of brevity the to Due Gazette. Kenya in the mandate its in stipulated Operation 3.1.2 WakiCommission: and prosecution. investigations senior the on staff international by recruiting component international an have tribunal, with the mandate of prosecuting crimes resulting from PEV. The tribunal was set to impunity was a central point of the Commission which recommended the creation of a local state security agencies and coordination within the state security mechanism. The culture of recommendations whichincluded strategiesimprove performanceto and accountability of Violence” (Gender and Governance Programme in Kenya 2009). The report issued GenderBased of the perspective upon as partof a broader andacted been havedocumented deep scars on the victims, particularly children for many years to come and therefore should civilthe Ms.Mbaru by failures said“Theseorganizations, leave WakiCommission the will based violence. An official of the Kenyans for Peace with Truth and Justice (KPTJ), one of criticism from human bodies,rights and gender organizations for ignoringmuch of gender complaints of sexual violence. (P.350). The Commission has since then received sharp into orinvestigate criminalas authorities unpreparedtorecord inthe were totally general power in Commissions of henceInquiry, mysuggestion redress to their and nature operation. “surgeon” were. This goes further to prove that political influence seeks to diminish the what the Minister does not say is when this “surgery” took place, and who the “patient” and The Waki Commission embarked on its 3-month mission on 23 May 2008 as help immediate receive did not violence of sexual victims itthe the was reported, As 28 CEU eTD Collection question of time limitis often a problematic issue in setting up CoI’s and that is why I instead work as complimentary tools in seeking justice, truth and reconciliation. The effective, they should notbe regarded as separate and seemingly competing entities, but recommendations stop. However, Iam of the opinion for these two commissions to be more (2009) proposes that TJRCfromthe should proceed theWaki where Commission Reconciliation team, especially with regards to the extension of the deadline. (P.3). Wainaina Wakithe wasits from Commission lackaddressed of support National the and Dialogue problems Oneof the wasreceived. information only partial that meant the time constraints, declinedwhile theformer President toameeting. Prime Minister and one Deputy Prime Minister but was unable to meet with the President, the political leadership and claimed to manage an interview with the Vice President, the institutionsthe in tofacilitateorder inquiries. the Furthermore, italso audience sought with investigations,of the which according Commissionthe to enabled building the with of trust consulted with officials and departments of governmentthe whose functions fell in the scope between itpartnerships andgroups as asmanyinterest possible. The Commission also to their terms of reference, the Commission established rules which were aimed at creating According of their operation. keep thepublic abreast to media briefings occasional conducted secure [email protected] address,( established a website (www.cipev.org developing a reciprocal relationship with the media. To ensure accessibility information,of itby transparently work to strove it claims Commission The (P.3) extension. day 30 a granted to acknowledge thislimitation and evenrequestedfor a60day extension butwas period only Failure to visit some key areas that were affected by the PEV due to, as it is claimed, ) on which public hearing was recorded verbatim, and a ) for receiving confidential communication. They also They communication. confidential receiving ) for 29 CEU eTD Collection representativeness further in further 4. representativeness Chapter in Kenya and the scope of operation of the Waki Commission. Iwill explore this notion of organizations were. needs This tobeexaminedin contextof the complexthe ethnic structure society” not “civil these does showhowrepresentative report the organizations, society support. (P.5). Inasmuch as the Commission claims it worked closely with the Kenyan civil community and other in medical counseling services, They offered assistance also created. were interviewed bythe Commission dependingemotional support on relationshipthe they had built trust and credibility. The organizations,it is claimed, provided the victims that where incommunities contacts key other and victims individual leaders, community local of witnesses they had interviewed; helping in logisticsthe of operationthe by providing contacts from statements with often records their to access violations; rights in human trends of in: these Commission, assisted organizations offeringmaterials;background historical reports Commission, and various religious and faith Accordingbased to organizations.the Commission of Human Rights (KNCHR), different chapters of the Catholic Peace and Justice Jurists, (ICJ-K), the Kenya Human Rights Commission (KHRC), the Kenya National (KPTJ), the Inter-Religious Forum, The Kenya Section of the International Commission of Theseorganizationscommunities. includedKenyansfor Peacewith Truth and Justice lawyers whorepresented Commission’s victims the hearingsthe attended through and of organizations number these a Accordingly, violence. topost-election related in issues Kenyan civil society organizations, which assisted it with information, contacts, and expertise “CivilSociety” Involving 3.1.3 Chapter. next in the further this explore will I Justice. Transitional administering propose a re-thinking and restructuring of CoI’s,if they are to be used as effective tools for The Commission also claims that it deliberately decided towork closely with the 30 CEU eTD Collection full participation of Counsel Assisting the Commission. The Commission further claims further Commission The Commission. the Assisting Counsel of participation full evidence was presented, the Commission claims the witnesses had to be processed with the various civil society organizations. To maintain control and ensure relevant and credible witnesses who testified before it were identified and processed by lawyers acting on behalf of statements from the witnesses. The Commission claims that a considerable number of and the Law Society of Kenya (South Rift Branch). Nakuru, the North Rift Law Society in Eldoret, and the West Kenya Law Society in Kisumu, in Society Law Valley Rift to standing society law regional gave Commission the Nairobi, FoundationLorupe as interveners. All these are basedorganizations in OutsideNairobi. Persons Association, the Centre for Justice and Crimes against Humanity and the Tegla included the Kenyans for Peace with Truth and Justice, the Rift Valley Internally Displaced legal standing allowed Other groups of PEV. in context of interests the women the represent (FIDA) and the Centre for the Advancement of Women and Children. These were allowed to Women Federation of Lawyers were the legal eventually Thosegiven standing participate. proceedings, the Commission claims it allowed as many interest groups as possible to involved in theaddressing post-election violence itself. ensure To thequality the of had been that and organizations proceedings of Commission’s the aspects specific on experts representatives, victims’ of the They comprised in proceedings. participate the applied to The Commission also claims that groups of citizens and the civil society organizations also Kenya; Kenya the National the Service; and Prisons Security Intelligence ArmedForces. the of Commission Electoral the Administration; Provincial the Police; Administration the indepartments toparticipate Kenya were:the hearings.government the Police These Service; The legal standing providedin for Commission’sthe mandate allowed certain All participating groups submit wererequired tolists of their witnesses and 31 CEU eTD Collection defended itself by referring its to terms of toholdreference public officials accountable. drawing alarge sample of its witnesses from public officials. The Commission, however, itis that wonder for represented, Commission and no the drew criticism organizations and reform of the structure of Commissions of Inquiry. Examining the range of witnesses This adds further to problemthe representationof –central in my – forargument a rethinking tolight.violence actual (P.11-12). magnitudethe wasbrought (avoidable)the post-election of failed todo withso. information come forward otherwise reliable witness protection program and this meant some of the witnesses who would have testified under camera. However, a major setback faced by the Commission was the lack of a testified in private. The Commission claims it protected the privacy of the witnesses, who testifying publicly, whichanumber of victims whofor fear of reprisal outof or trauma reference, Commission the held both public andprivate hearings, with public officials mostly findings, after testing and evaluatingindependently. them According tothe terms of accusations. Italso materials usedother itsby provided organizations tocomplement various all witnesses fairlywere treated and itestablished rules to shield them from unfair concerning the PEVandimpunity in Kenya.is It alsoclaimed that the Commission ensured and procedures. The Commission also claims this was the best way to uncover the truth Commission adopted a mix of both adversarial and inquisitorial methods reflected in the rules according to the Commission, determined their choice of methods of inquiry. Therefore, the are influenced by lawKenya’s common tradition. Abiding (P.8). by understandingthis sharp conflictingviews enabledenrich itto quality the and objectivity inquiry.the of who often hadlawyer, andthe groups, especially interest of diverse participation allowing In the end, the Commission admits that in the final analysis, only a tiny fraction of According Commission, tothe publicinvestigativeinquiries courts arelaw, not of but 32 CEU eTD Collection tool for Transitional Justice. Transitional for tool highlight ways in which Commissions of Inquiry could be modified to enable it tobe a better South Africa Truth and Reconciliation Commission and one CoI- the Orr Report. I will will not only assess the Waki Commission, but I will also briefly examine one TRC- the Chapter 4:Commissions of Inquiry andTransitional Justice Justice. Transitional administering need tobe redressed, to empower Commissions of Inquiry as an effective tool for representativeness of “civil society” and methodology, Iwill show in chapter 4 that these Building on the problem of time constraints, composition of the Commission’s body, couldthat haveenablebefunctions to done to Commissions adequately. this and other to achieve its goals within the time stipulated. However, as we shall see, there was a lot more defend werevery much under-represented. to be heard. This argument however is still contested as the ordinary citizens it claimed to parliament, with ordinary citizens whoaccording to Commissionthe had much less chances in have already politicians the Commission, tothe forum, according which for anopen-ended afternoon to present their views. The Commission asserts that it had to balance their desire establishment of the Commission of Inquiry were dissatisfied with being given only one questionable. Ironically, the political parties pivotal to the political divide that led to the However, the validity evidencethe of by produced relyingheavily officialson public is To provide paradigm abroader for regards discussion with to Transitional Justice, I The Waki Commission tried in its capacity, given its terms of reference and mandate 33 CEU eTD Collection Bishop Tutu Bishop Tutu said they had beenprivileged toheal a woundedpeople eventhough they were callingit culmination the of a remarkableby effortextraordinary tobringpeople healing. Constitutionthe of Republicthe AfricaNo.South of 108 Act of 1996. color, race, class, belief or sex. The provisions were preserved in Schedule 6, section 22 of forall Africans irrespective of anddevelopment opportunities peaceful South co-existence pastof the untolda deeply by and suffering strife, conflict, society characterized divided reference of National Unity and Reconciliation. This was to provide a historic bridge between the constitution of the Republic of South Africa Act No. 200 of 1993 with the terms of became the first Black African President in South Africa. The TRC was formed according to were that initiated in 1990 after the defeat of negotiations apartheid rule and the releasepolitical of Nelson the Mandela. Hefrom later emerged that instruments legal the under formed Commission. and Reconciliation in Truth African South islargely the as thetotal reflected This outcome. and reconciliation of law. However, as discussed earlier, many are concerned with the question of justice, truth courts through means retributive than countries laden in conflict reconciliation about bringing (1995; 1997),( Teitel 2000) and(Stacey 2004) viewTRC’s as alternative bestthe to used inmany as countries for administeringa tool Transitional such Justice. Authors as Kritz tool for administering Transitional Justice. As discussed earlier, TRC’s have been widely broader approach that I use the term to discuss the possibility of using CoI’s as an effective broadens theterm includeto compensatory, distributive, and restorativejustice. Itis with this to penal justice and even retributive interpretation of trials and punishment. However, he Crocker ( 2000) claims that the term Transitional Justice could be used to refer solely The Commission represented a new South Africa, as hailed by Bishop Desmond Tutu, The South African Truth and Reconciliation Commission (the Commission) was 34 CEU eTD Collection with cynicism. Itis therefore in my view that a modification might be necessary to enable Col has been set upandrecommendations given. themselves,indicating that these qualities are not necessarily achieved just because a TRC or resentment still remain in either camp, and worse still, there is conflict among the blacks feelings butAfrica, of in has taken place South reconciliation forexample bethat assumed in the structure of CoI’s, there is hope for achieving truth, justice and reconciliation. Itmay Nevertheless, Iam of the view that this compromise is not inevitable, and that with a reform therefore, in order to achieve truth, justice and reconciliation; a sacrifice had to be made. less than sociality humane nothing aquality of of retaliation; essential and adorablevirtue of healing and social building relationships, given at the expense are very much contested. Commission. We see here that the issue of reconciliation and the operation of Commissions the unwillingness to use these powers contradicts the nature and terms of reference of the argue, they as but reconciliation, national sabotaging about concerns its on based was failure subpoena (Quinn powers and Freeman Quinn2003). and Freeman claim sometimes that the inspite of of its failureacclaim its received international criticism maximize useof the reduced for the last 3 yrs. TRC is regarded as one of the most successful commission and has witness protection powers. It began with a 18 million dollar budget per year but this was enabled TRCtogrant individual amnesty, searchand subpoena seizure powers, and powers Parliament passed by the Promotion of National Unity and Reconciliation Act. The Act also wounded. (South Africa TRC Report 2003 ). The TRC was granted powers when the Commissions of by Inquiry their very andnature operation have often been regarded Avruch and Verajano (2000) claim that Bishop Tutu regards restorative justice as an 35 : ubuntu . It can be seen CEU eTD Collection country’s Jews but the money was misappropriated. Similar to the Waki Commission, the allocated almost 1Billion dollars to raise the living standards of Israeli-Arabs to those of the of 4531 new civil servants. According to this report, Ehud Barak, then Prime Minister civil service. Outof a new survey, government the hiredonly 193 Arab out of workers a total were getting worse as statistics showed a very small percentage of Arab Israeli worked in civil Arabs wastheacceleratinginto things Report according of toSedan (2004), but service, Summation of Orr Commission 2003).Among the recommendations in Orr Commission services; improving education andimproving the circumstances of Bedouin the ( Official developmentand employmentschemes; proper representation in andgovernment public planned expansion of Arab Israeli towns; the allocations landof for this expansion; industrial empowering Arab-Israeli local mastergovernment; plans and local schemesoutline for the for authority promotinggovernment minority allocation addressinequality; sectors; budget to findings werein released 2003. (Official 2003) of Summation Orr Report force on the Arabs. The Orr Commission was set up to investigateinto this violence and its Kenyan Security 2007 PEV,the wereaccusedForces of using excessive andunnecessary the course of the violence, 12Arab-Israeli and 1 Jewish-Israeli were killed by police. Like the The Arab-Israelis claimed that the State was negligent of their plight and discriminatory. In inside theJewishState. largeby were created aArabminority of existence that the problems claimed was the failure of the State of Israel and its generations to address the serious attacked for being Jewish and their property destroyed. The main cause of the violence as it is placesin simultaneously. Thousandswere took tothestreets unprecedented. different Jews Like the 2007 election violence in Kenya, October the 2000uprising among Arab-Israeli was them to function effectively. Toillustrate this further I will briefly discuss the Orr Report. Unlike the Waki Report, the Orr Report had the following recommendations: a 36 CEU eTD Collection were due to the time constraints. If such crucial matters werenotadequately handled,or If were duetothe matters such crucial time constraints. exerted its strength to achieve its best. As it claims, a lot of issues that were not dealt with theCommission mandate, in its terms of capacity and the Given reference participation. of this research, Imainly focus on the representativeness civil society,in terms of public andmany orunrecorded ignored areasin itother beimproved.could thepurposes which For was that violence sexual of allegations the representativeness, of issue the unresolved: Kippur 2008). Acre riots this day, the problems raised still remain a thorny issue in Israeli-Arab Politics.(The Yom can be. The recommendations set up in this Commission were not implemented fully, and to the eventual outcome, we can see just how elusive the promises of change offered in CoI’s could tobe prove very beneficial in future dealing with conflicts. Citing the OrrReportand particular, toadminister Transitional improvingJustice. However, thistool serve itsto goals participation has played agreatrole in weakening the outcome of TRC and in CoI’s civil representative overlooking that I believe be achieved. areto fruitful or results am of the view that itis imperative to reconsider the nature and operation of CoI’s if desired issues athand. power. Consequentially, findings the would generally appease thepublic butnotdeal with the blamed the police, though the police claimed that they were under orders from a higher necessary from the Arab side as well.(Sedan 2004). Like the Waki Report, the Orr report changes were what examining than rather government the he criticized claim, they Therefore, up OrrCommissionthe in togetArab-Israeliorder which vote, he desperately needed towin. causes of the October violence still remain. In fact, some critics said that Ehud Barak only set The Waki Commission also leaves a lot of questions unanswered and issues Taking into consideration the purposes of commissions and their ultimate outcome, I 37 CEU eTD Collection incorporating traditional modernand means.peace-making Acknowledging Shikwati (2008) bottom in a cycle of fighting wars they don’t understand. He suggests for Kenya to consider is justice–past –without quo, while strengthen likely majority status the keepingthe to at the the leveltop butleave thebottom level in reeling pain. Shikwati forgivingasserts that the African strategy of Truth and Reconciliation. He claims that reconciliation may take place on of learn from andSouth go weaknesses the the beyond “scarecrow” Kenyans to urges the of the perpetrators of PEV. Shikwati calls for the need for a legitimate social contract and President, Jomo Kenyatta. He regards the Waki Commission as “scarecrow” for its treatment suppressing them “forgivethrough andforget past” the slogan, alegacy from foundingthe be given the opportunity to deal with the cause and motivation of the PEV instead is still debatable. has to be paid, or has already been paid. Whether reconciliation can take place without justice societies. This may be the case, but even with forgiveness granted, there is always a price that spoken. As (2000) Crocker pointed forgivenessout, is more easily inexercised religious forgiveness.Amnesty is even provided, as the case with South Africa, so that truth can be isdiscussed, reconciliation: not Mercy Judgment, seems tobe underlyingthe forfoundation in goal as hasbeenalready The TRC’s toinfluencehave decisions. power that regimes JusticeTransitional isoften achieve to existing becauseof problematic previousthe or viewed. been have Inquiry minimize, if not eliminate the cynicism and the skepticism with which Commissions of believe there is need of bettering this tool in order forit to gain higher credibility and mandate, stipulated duetoadherence tothe neglected is there a needforI arethinking. Commenting on Wakithe Commission, Shikwati Kenyans(2008) argues that should Building on the notions of truth, justice and reconciliation as many authors argued, 38 CEU eTD Collection may interact with them daily in the process of reconciliation. But this does little justice to the the ones who actually carried it out are free to stay in an eye’s reach with the victims who tribunal prosecutewould berequired only to funders the andorganizers of violence,the while businessmen.Working with recommendationthe as itis, itmay be understood that the them, especially youth,the werefunded by some politicians and otherinfluential of lot a findings, the from is because This claims. Commission the as responsibility” “greatest the with necessarily people the thesewerenot However, familiar with. people they were in the Commission,most of ethnic violence was done by the neighbors of the victims, or responsibility are notbrought to accountability. From various witnesses’ accounts as recorded great” than “lesser and “great” with those that implies responsibility greatest the with bearingresponsibility.” greatest the However, (P.472). seeking toprosecute only persons setting upaspecial betribunal would necessary “seek accountability to persons against 13 in the Waki Commission, which deals with the recommendations,it is clearly stated that expansion of TRC’s forsufficient apardon publicthrough confession, butasshe suggests, isthere aneed for not automatically guarantee truth speaking. For justice to be done therefore, it is not just alsoargues into accountability. offeringHaynerdoes that amnesty perpetrators the (2001) Mariezcurrena 2006)and (Hayner2001)pointout, itis paramount find to means of bringing and reconcile. Commission of Inquiry and expects the citizens to simply accept the findings,forgive the past participation; not a blanket form of reconciliation because the government has set up a root level, byengaging public the directly individual,through voluntary representative, Isuggestthatconcerns, achievingjusticebe could and best done on a grass- reconciliation On issuethe ofjustice, as(Kritz1997), (Teitel 2000), (Call (Arriaza2004), and and Imayadd CoI’s to make judicial-like decisions. Looking at Chapter 39 CEU eTD Collection representativeness. Thislack hampered Waki representativeness. although of the representativeness Commission: but several sub-Commissions focused on smaller areas to allow coverage of depth and be possible if not just one Commission of Inquiry is set up on national level for the conflict, could This could be useful. a in reform structure conflict, after the reconciliation of peace and be delayedorprevented all due together to political manipulation. in would couldprocesses the participation crucial certain decisions that accelerate otherwise their operation. It is in my opinion therefore that a reflection of representative public often determines the outcome of decisions.With regards to setting up CoI’s, this weakens compromise of its operation. It is this designating of immense power in the Presidency that implicated, the creation of a special tribunal determined by those in power could resultin Report. (Commission P.472). If as described in the findings of PEV, politicians are and Constitutional Affairs and the Attorney General, within 30 days of the released of the consultation of the Prime Minister, Chief Justice and Minister for Justice, National Cohesion The commencement of its functioning was to be determined by the President with the an signedagreement by representative with parties setting regards to special upthe tribunal. worseto dofurther, harm or in future. is, and glossing over facts actually equips those with “lesser responsibility” with more power shouldn’t be trials just for those with greatest responsibility.A crime should be defined as it matter on a national level only does not reflect the clear picture on a local level. There level. That is why,in my assessment, restricting Commissions of Inquiry dealingto with the tried, found guilty and punished, the victims will have to deal with the trauma on a local victims whose families were killed and property destroyed. Even if the said politicians are Commissions of Inquiry also could explore more subjectmatters, hence, in the pursuit Furthermore, one of the Waki Commission’s requirements was the establishment of 40 CEU eTD Collection revealed as the citizens feel they have been valued because their voice counts through being through counts voice their because valued been have they feel citizens the as revealed which are part of the Commissions of Inquiry mandate. By way of discussion, alot could be areasin forums, air given some within citizens to the chance the are given the views their creating sub- Commissions of Inquiry, representative civil participation would be realized if issue of time constraint could be solved due to more diversification of responsibility. Besides scholars many amongterm a contested “civil society”, represent automatically they assumed that people, but each has its own mandate and mode of operation, therefore, it should notbe organization, does not solve the puzzle. These organizations in deed serve the common society” “civil under them blanketed and ignored Commission the which citizen, balance. relying Furthermore, senior on publicofficials getting without voice the of ordinary of ethnicity in Kenyainstance, for the156 witness not sample does reflect ethnic orregional representation,it is notjust enough to have a large sample, but understanding the multiplicity achieve justice and reconciliation, then all sides need to be heard. Still on the issue of representative. This of course means more funds to finance the operation, but if the goal is to operate on sub-levels,for example province by the resultprovince, would be more population and the magnitude of the PEV. However, if the Commission were reformed, to senior public officials. 2008).This (CIPEV is a miniature fraction of samplethe of total the 156 witnesses, exhibits included,werepresented at proceedings.the Majority of these were would have been achieved and the sample obtained representative. Moreover, only a total of within the Commission of Inquiry, each concentrating on a specified area, Ibelieve more sub-Commissions been there Had constraints. time the under so, do to failed eventually it set out with noble goals of reaching out to all the regions affected by the violence,it By dividing up the investigation to involve local levels, a bottom-up approach, the approach, a bottom-up levels, local involve to investigation the up dividing By 41 CEU eTD Collection necessary in the structure and operation of Commissions of Inquiry. While Commissions of relation to TRC, this very logic would be useful in understanding the reform that might be commissions and reckoning with past wrongs.” (2000:1).Although Crocker writes this in modified toactan effective tool for administeringTransitional Justice? example through which reform could be realized, how then can Commissions of Inquiry be inas an Kenyan atthe looking So WakiCommission isnecessary. doubtless itbe painful, together may be unpalatable. Kritz (1995) however says that inasmuch as reconciliation could bearing in mind that some communities were heavily affected, and the very notion of getting and in the process, bring some form of healing and reconciliation. This is not an easy task, involvesthat publicKenyans, participation, couldlearn laugh to with one another once again, After the PEV, this laughter can hardly be hailed. Through a modified Commission of Inquiry not laugh learned people to of Majority the alsobuteducational. entertainment This imitatedinvolved andfrom that ethnic of was asource diverse people groups. government. gradually learn beto comfortable with one another, knowing they are backedby the obtain more information than would be received at awitness stand. In this way, the people information (both “forensic” and “emotional truth”) as Crocker defines. Doing this could investigative methods in the forums such as informal interviews. These can elicit vital other involve be andatthesametime released, allows to emotions that genre dramatized encouraged to plan activities together, such as simple discussions, plays or any other form of sought in dialogue. In these forums, the various ethnic groups involved in the PEV would be at each other, as they watched the diversity of ethnicity and political drama inKenya. as political and eachdrama diversity ethnicity they the of other, watched Crocker writes: “a nation’s civil society is often indispensable to the success of truth To illustrate further, there used to be a comedy/ political satire on the local TV station 42 with each other, each CEU eTD Collection with the case of the Waki Commission. This may be helpful to give the Commission legal changed. Under the Commission of Inquiry Act, the President appoints the Commission as be to needs this that suggest I individuals. influential and officials government of comprises usually by appointed government,the headed by judge,a and usuallytherest of body the to be realistic; not politically motivated or bureaucratic. Thirdly, Commissions of Inquiry are logistically. This does not mean setting up endless investigations, but the time allocated needs of topic underinvestigation and the scope, both geographically and physically and However, alot issues of be need to considered before setting upaspecific period: naturethe which the investigation should be completed, as was the case with the Waki Commission. justone allow may topic not seeingthe total picture. of reference, but they could be very useful to the investigations. Restricting for example to terms underthe initially may bemade, that were not stipulated newdiscoveries investigation, term of practice should be loosened and broadened. This is because in the course of the Commissions of Inquiry. (Royal Commission 1966; Manson and Mullan2003)This fixed enable it tobe flexible, not a rigid bureaucratic tool as per the by the definition of reformed instructure and operation, Isuggest5 steps to be taken: society is a contested phenomenon. Therefore, in seeking toshow how CoI’s could be society as “representative civil participants”. I seek to specify this because the notion of civil leading guidelines. The place of civil beneedssociety addressed to butin my civil opinion, hand as felt by the victims of the conflict. By raising the role of civil society, Crocker gives issues at the real representations, in explore with and adequate fail way this bureaucratic to Inquiry have well andestablished procedures elaborate data findings, they are usually highly Secondly, under the Commission of Inquiry Act, a specified time is stipulated upon First, Commissions of Inquiry should be re-structured by re-defining the term to 43 CEU eTD Collection people with key the issues. seek toaddress the key issues at the heart of people, but they fail graspto the hearts of the Commissions thataresetup on a grandlevel, headed and by operated influentialonly people regionally or locally, toallow as much representative public participation as possible. Inquiries as sub-Commissions, answerable to the main Commission. These need tobe done Lastly,but most importantly in dealing with ethnic conflict, I suggest a multiplicity of with a price tag. invaluable; they come are and Reconciliation Restitution compromise. both locally and internationally and once the powers are issued, there should be no prosecution,accountability whichleads to and reconciliation. These should berecognized empowered with semi-judicial and subpoena powers to be able to exercise a form of trial for would more than likely compromise the process of investigation and the eventual outcome. government involvement, as they claim government authorization of these commissions relation to the Law Commission in Canada, CoI’s should be totally independent of accountable, issues of compromise might arise. As Centa and Macklem (2003) argue, in standing, butin the place where the government is implicated as the one called to be contacted or accessed in order to be called into accountability for a true reconciliation. In the forreconciliation. atrue accountability beinto in called to oraccessed order contacted perpetrators of the violence would be already dead, or in exile, therefore they cannotbe TRC focus on the past, sometimes dating back decades ago. As a result, some of the is more likely that the perpetrators are within reach or more accessible .On the other hand, recent events. This gives them a greater chance to confront perpetrators of the violence, asit may prove to be potentially more effective because they deal with the issues at hand, or administering Transitional Justice. However, I am of the view that Commissions of Inquiry Ibelieve that TRC’s and Col are complimentary, Furthermore, I believe that Commissions of Inquiry intoethnic conflicts need tobe 44 not competing tools in CEU eTD Collection to be effective means in truth, exposing seeking and justice finding reconciliation. in asacasehave toshow Kenya study,in endeavored Iof potential the Inquiry Commissions Wakithe Commission, which was established inquire to into 2007post-electionthe violence participation, to enable it tobe effective tools in administering Transitional Justice. By using the structure and operation of Commissions of Inquiry to involve representative public administering Transitional Justice. This research has examined the possibility of reforming more research needs to be done with regards to using Commissions of Inquiry also as tool for Justice, and Transitional Commissions andTruth Reconciliation on literature lot been of a aim bringingof about a restorative justice as a form of Transitional Justice. While there has the with wrongs, past acknowledge to used widely been have hand other the on Commissions avoid canbemanagedinstitutions conflict. future effectively Truthand to Reconciliation of the violence to accountability and justice, and also devise ways in which governments and intoinvestigate crisisthe aim with the recommendations giving thatcall upon perpetratorsthe pursued in different ways, and more recently, the setting up Commissions of Inquiry. These desire resolve to conflict, reconcile andlive in atpeace. Efforts achieving this have been conflicts have brought to many nations,it is clear that at the heart of most countries,is the in ethnic conflicts in pastdecades,especially the the destruction Africa. Despite ethnic Justice. administering Transitional for them to actasamoretool effective for expedient operation of Commissions of Inquiry involveto public representative participation is justice and reconciliation. It is therefore in my opinion that a reform in the structure and truth, about bringing in potential CoI’s of exploration the for need is a there this, of light Politicization of ethnicity as discussed by many authors has largely contributed to contributed largely has authors many by asdiscussed ethnicity of Politicization Looking Ahead 45 CEU eTD Collection Transitional Justice. Transitional be ways functioning in“restorative-retributive” as forms regardedascomplimentary tools, of adapted as means to finding reconciliation in ethnically divided societies. These two should being gradually are Inquiry of Commissions and Commissions Reconciliation and Truth Both and operation of Commissions of Inquiry, toempower them to facilitate Transitional Justice. among other means of seeking justice and peace in nations; I propose a reform the structure heard and represented. A different form of approach is needed for these volatile times, hence way,it could prove that in the midst of turmoil, war or revenge,is a genuine desire to be inpeace isreal. andin Even if rebel, mostardent meaningfully the a representative involved with the trauma of the past and help bring about justice and reconciliation. The quest for ofdealing process the accelerate This could participation. public involve representative that that are emerging from a dilapidating civil war could seek toform Commissions of Inquiry underway, or it would be a chief complimentary tool to it. Countries like Sri Lanka and others necessary to set up the Truth, Justice and Reconciliation Commission (TJRC) that is carried out its duties successfully under suggested the framework, it might not be very Reconciliation Commissions. The Waki Commission could be an example to show that if it and Truth of formation less be even might there implemented, and designed well if and conflict ethnic haveare, experienced or recently in that to bevery effective countries representative participation.can public It beCommissions argued that of Inquiry could prove Transitional Justice if there is a modification in their structure and operation, to involve of Inquiry at large,it has been shown that CoI’s could also be used as vehicles to exercise By andanalyzing structure the operation Waki of the Commission and Commissions Word (Abstract Count:14,810 andBodyof Thesis) 46 CEU eTD Collection Bradley.A.W. 2003.“Commissions of Inquiry Governmental and Accountability.”31- Pp. 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