Kenya's leadership has announced the country will use a Truth, Justice, and Reconciliation Commission to deal with the suspected perpetrators of post-election violence. But high-profile Kenyans are expressing doubt the commission can live up to its enormous mandate.
Kenyan President Mwai Kibaki announced the creation of the Truth, Justice, and Reconciliation Commission this past month. The commission is tasked with investigating historical injustices dating back to Kenya's independence more than 40 years ago and promoting national healing.
The commission was agreed upon during mediation that followed the violence that erupted after the faulty December 2007 elections.
The nation's leaders have not set up a fully empowered tribunal to try post-election violence suspects. Kenya's government has announced it plans to use the Truth, Justice, and Reconciliation Commission to try high-level suspects, but the commission lacks prosecutorial powers.
For reformers seeking an end to Kenya's political culture of impunity, the Truth, Justice, and Reconciliation Commission has never been a credible option.
A human-rights activist and prominent Kenyan lawyer, Paul Muite, a says such a commission could fulfill its purpose only after Kenya has successfully transitioned to a fully functioning democracy. Until that time, he says it will only be used to protect those behind the abuses.
"You can not have a generally effective TJRC when there is no transition. It is premature," he said. "And really, it is just going to be used to sanitize the perpetrators of land grabbing, corruption, political assassinations, rather than establishing the truth and getting reparations for the victims. That is my view: Kenya is not ready for the TJRC."
Kenya's Truth, Justice, and Reconciliation Commission is loosely based on the South African Truth and Reconciliation Commission chaired by archbishop Desmond Tutu after the fall of the apartheid system. The South African commission had the power to grant amnesty to those who testified fully and is generally recognized as helping to unify the country.
Muite and others have criticized President Kibaki's choice for commission chairman, a government official under former President Daniel arap Moi. The Moi government was responsible for many of the abuses the TJRC is set up to investigate.
Other details of the commission's structure are seen as equally problematic.
Alfred Gituki, an analyst at Kenya Leadership Institute, finds the commission's two-year window much too short considering the enormity of its task.
"I doubt the commission will be able to deal with all the issues between 1963 and now in the two years. Probably they will be able to get to the last two decades," Gituki said. "But there are quite a number of other things that need to be dealt with that require way more time and probably a mechanism within the commission that allows for renewal or replacement of commissioners."
Gituki says even if it looks all the way back to independence the commission would still fall short of success, since it would not bring closure to the injustices suffered under colonialism.
Kenya's attorney general has been quoted as saying that reforming the commission to take the place of a special tribunal is not possible. He criticized his fellow Cabinet members for their decision.
During her stop last week in Kenya, U.S. Secretary of State Hillary Clinton also expressed her disapproval of handing the suspects over to a body that has no prosecutorial powers.
"There is required to be a constitutional amendment in order to create a local tribunal, which has not passed the Kenya parliament," she said. "I think that is regrettable ... and there are reasons why it is preferable to the Truth, Justice, and Reconciliation Commission because it would have the ability to actually prosecute the perpetrators."
Secretary Clinton reminded the nation's leaders that if they failed to act, the International Criminal Court would.
"One of the reasons why the United States and other friends of Kenya are encouraging Kenya to handle this internally is so that it is not sent to the ICC," Clinton said. "The ICC will not act if a country is dealing with internal problems on its own."
A recent public-opinion poll indicates the majority of Kenyans prefer high-level suspects to be tried at The Hague. For many Kenyans, this is one area in which the government is simply not to be trusted.