tjrc report volume 1

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A

Volume I ChapterON E

REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION

K E N Y A

Volume I

REPORT OF THE TRUTH, JUSTICE AND

RECONCILIATION COMMISSION


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REPORT OF THE TRUTH, JUSTICE ANDRECONCILIATION COMMISSION

Volume I


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Truth, Justice and Reconciliation Commission, 2013

This publication is available as a pd on the website o the Truth, Justice

and Reconciliation Commission (and upon its dissolution, on the website

o its successor in law). It may be copied and distributed, in its entirety, as

long as it is attributed to the Truth, Justice and Reconciliation Commission

and used or noncommercial educational or public policy purposes.

Photographs may not be used separately rom the publication.

Published by Truth Justice and Reconciliation Commission (TJRC), Kenya

ISBN: 978-9966-1730-3-4

Design & Layout by Noel Creative Media Limited, Nairobi, Kenya


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His Excellency

President o the Republic o Kenya

Nairobi

3 May 2013

LETTER OF TRANSMITTAL

By Gazette Notice No. 8737 o 22 July 2009 and pursuant to section 10 o the Truth, Justice and

Reconciliation Act No. 6 o 2008, the undersigned were appointed to be Commissioners o the Truth,

Justice and Reconciliation Commission. The Commission was established with the objective o

promoting peace, justice, national unity, healing, reconciliation and dignity among the people o Kenya.

Having concluded our operations, and pursuant to section 48 o the Truth, Justice and Reconciliation

Act, we have the honour to submit to you the Report o our ndings and recommendations.

Please accept, Your Excellency, the assurances o our highest consideration.

Amb. Bethuel Kiplagat

Chairperson

Tecla Namachanja Wanjala

(Vice Chairperson)

Judge Gertrude Chawatama

Amb. Berhanu Dinka

Maj. Gen (Rtd) Ahmed Sheikh Farah

Pro. Tom Ojienda

Margaret Shava

Pro. Ronald Slye


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Volume I

i

Table o Contents

Foreword ................................................................................................................................. iii

Executive Summary ............................................................................................................ vi

List o Abbreviations ....................................................................................................... xxi

CHAPTER ONE

Background to The Commission........................................................................................................... 1

Introduction ............................................................................................................................. 1

Historical Context.................................................................................................................. 3

The Road to Establishing a Truth Commission ............................................................ 6

Establishment o The Commission ................................................................................ 22

Management and Administration ................................................................................. 27

Operational Period.............................................................................................................. 36

CHAPTER TWO

Interpretation o Mandate .................................................................................................................... 39

Introduction .......................................................................................................................... 39

Core Concepts ...................................................................................................................... 41

Objectives and Functions o the Commission........................................................... 52

Temporal Mandate.............................................................................................................. 57

Subject Matter Mandate ................................................................................................... 62

Breadth and Complexity o Mandate ........................................................................... 70

Responsibility or Violations and Injustices ................................................................ 70

Amnesty ................................................................................................................................. 71

Other Relevant Aspects o the Commissions Mandate ......................................... 74

CHAPTER THREE

Methodology and Process .................................................................................................................... 79

Introduction .......................................................................................................................... 79

Civic Education and Outreach ........................................................................................ 81

Statement-Taking ............................................................................................................... 83

Memoranda........................................................................................................................... 88

Inormation and Data Management ............................................................................ 89

Research and Investigations........................................................................................... 94


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Volume I

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Hearings ................................................................................................................................ 96

Focus Group Discussions ............................................................................................... 116

Site Visits ............................................................................................................................. 118

Reconciliation .................................................................................................................... 119

Report Writing ................................................................................................................... 121

CHAPTER FOUR

Challenges in the Execution o Mandate ..................................................................................... 123

Introduction ........................................................................................................................ 123

Credibility and Suitability o the Chairperson ......................................................... 124

Financial and Resource Challenges .......................................................................... 144

Legal Challenges ............................................................................................................. 148

Lack o Political Will .......................................................................................................... 151

Conclusion........................................................................................................................... 154

Appendices Appendix 1A:Personal Proles o the Commissioners ...................................... 155

Appendix 1B:Management Team .............................................................................. 157

Appendix 2:List o Regular Sta................................................................................. 160

List o Interns and Data Entry Coders ............................................. 164

List o Consultants and Resource Persons .................................... 165

Appendix 3: Audited Statement o Financial Position or the Year2010-2011 and 2011-2012 .................................................................. 166

Audited Statement o Comprehensive Income or the

Years 2010-2011 and 2011-2012 ...................................................... 167

Cash Flow Statement or the Years 2010-2011 and

2011-2012.................................................................................................. 168

Appendix 4: Statement Form ...................................................................................... 169 Appendix 5: Children Statement Form.................................................................... 194 Appendix 6: Gazette Notice: Hearing Procedure Rules..................................... 198

Appendix 7: Ambassador Kipligats Statement on Resumption o Oce ...... 203

Appendix 8: Guide or Focused Group Discussions on the Nature and

Extent o Violations o Socio-Economic Rights and on

Perception o Economic Marginalisation ..................................... 207

Appendix 9: Advisory Opinion by the Commission on AdministrativeJustice ......................................................................................................... 214

Appendix 10: Aide Memoire ......................................................................................... 219


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Volume I

iii

Foreword

It has been a long journey. From the day o our swearing in on 3 August 2009, to the

handing o this Report to the President, we have experienced every emotion; rom joy, to

rustration, to exhilaration, to humility.

This Commission collected the largest number o statements o any truth commissionin history. With the tireless help o the over 300 statement takers we hired, and the more

than a hundred that were seconded to us by civil society organizations, we collected over

40,000 statements. It is diicult to discern the signiicance o this singular achievement.

While the statement taking orm was pronounced by international experts in the ield

as one o the best they had ever seen, we acknowledge that there is a wide variety o

detail and accuracy in the statements we collected. We also acknowledge that, as ar as

we are aware, we deployed by ar the largest number o statement takers o any other

truth commission, thus perhaps contributing to the large numbers o statements we

collected.

What we can say with conidence, however, is that the record number o statements

collected airms our individual perceptions as we travelled the length and breadth o

the country: there is a hunger, a desire, even a demand or the injustices o the past to

be addressed so that those individuals who have borne the brunt o those injustices,

and the nation as a whole, may move on. The 2003 Task Force on the Establishmento a Truth, Justice and Reconciliation Commission reported that over 90 percent o

Kenyans wanted a truth justice and reconciliation commission. We are not in a position

to conirm that percentage, but we can with ull conidence, on the basis on our

collective experience, report that the vast majority o Kenyans not only wanted such

a commission, but were willing to spend a signiicant amount o their own time, and

sometimes money and other resources, to participate in a truth-telling process.

This is a Report. It is written with words, and printed on paper or converted intoelectronic bits and bytes. Yet it is the product o, in some cases literally, the blood,

sweat and tears o the stories that were told to us as we travelled the country. The

written word, no matter how poetic, cannot convey accurately the passion with which

people demanded to tell their stories and the integrity and dignity with which they

related their experiences. It cannot convey the silence, the tears, and the emotions that

enguled the venue at which a man described how he lost his entire amily during the

2007/2008 Post Election Violence (PEV). It cannot convey the traumatic experience o a

woman who was raped during the PEV and her ear that the same could happen to her


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Volume I

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during the 2013 elections. Nor can it convey the horrid experience o a woman who had

to carry the head o her slain husband all the way rom Nakuru to Kisumu. It can neitherconvey the tears that were shed beore this Commission nor the tears that were shed

by the Commissions sta and Commissioners. The stories in these pages are horrid but

they did happen, here on our land. In a nutshell, there has been, there is, suering in

the land.

So while this Report is the inal product o this Commission, and with the passage

o time will be viewed as the primary legacy o our work, we know that the work o

the Commission is also written in the hearts and souls o each and every person who

interacted with the Commission: the statement takers and statement givers; victims,

adversely mentioned persons, and those who reside simultaneously in both categories;

witnesses who testiied in public, and those who testiied in camera; those employed

by the Commission, and those who took on the task o monitoring and reporting on

the work o the Commission; and inally, the millions o others who may have viewed

a news story, or read an opinion piece, or seen the Commissions truck with our logo,

Tusirudie Tena! blazoned on its side. Each o these individuals, and the interactions theyhad with the Commission, whether positive or negative, are a part o this Report, and

thus a part o the legacy o our work.

This has been a Commission that, like many that went beore it, both in Kenya and abroad,

has aced its challenges. Some o those challenges at times threatened the very existence

o the organization, and took its toll on many o us, both physically and emotionally. We

lost our original Vice Chair, Betty Kaari Murungi, because o some o those challenges. She

was never replaced, and we end this process with only eight, rather than the original nine,Commissioners.

We aced the many challenges, both anticipated and unanticipated, with courage,

conviction, and commitment. How well we succeeded in the end is not or us to say.

Instead it is or the people o Kenya, both today and in the uture, to determine how much

what we have provided in these pages and perhaps more importantly, how much our

work throughout the our corners o the country over the last our years contributes to

truth, justice, national unity and reconciliation.

We know that some have been rustrated by the act that we spent our years on a

task or which we were originally given a maximum o two and a hal years. At times it

rustrated us. In the best o circumstances, compiling a complete and accurate history

o historical injustices and gross violations o human rights (including violations o not

just the traditional bodily integrity rights, but all o the aorementioned plus socio-

economic rights, corruption, land, and economic marginalization) over a orty-ive

year period would be a daunting task to complete in our years, much less two and


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a hal years. In act it was clear to us rom the early days o the Commission that ours

was not to provide the deinitive history o the broad range o violations committedand suered during that orty-ive year period. Rather, we took our task to be making

a signiicant contribution to our collective understanding o that past, particularly

through the experiences and voices o those who experienced it irst-hand. It is our

hope that this Report, and the other work o the Commission, has at least done that.

Ater our years, we are truly humbled by the enormity o the task acing this great

country o ours. While we have made a small, yet we hope signiicant, contribution to

addressing the legacy o gross violations o human rights and historical injustices, there

is much still to be done. Yet, we take aith in the reorms that have already occurred,

including the adoption o the 2010 Constitution, and those currently in process. Even

more importantly, we are humbled by and also draw strength rom the millions o

Kenyans who, in the ace o sometimes insurmountable odds, struggle to provide or

themselves, their amilies, their communities, and the nation at large. It is that spirit o

perseverance in the ace o adversity, the willingness and ability to rise up above such

challenges with dignity and integrity, which we saw in Kenyans throughout this greatland that gives us hope or the uture o this beautiul country.

God bless Kenya.


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Volume I E X E C U T I V E S U M M A R Y

vi

Executive Summary

Introduction

The Report o the Truth, Justice and Reconciliation Commis-

sion (the Commission) has been produced at a critical mo-

ment in Kenyas history. Just two months earlier in March2013, Kenyans concluded a largely peaceul General Elec-tion, adding impetus to the need or solutions that will en-

trench a lasting spirit o peace, national unity, dignity, heal-

ing, justice and reconciliation.

Established in the wake o the tragic and devastating events

o the 2007/2008 Post-Election Violence (PEV), the Commis-sion has produced this Report as the culmination o a pro-

cess that lasted our years and took the Commission to allregions o the country.

The violence, bloodshed and destruction o the PEV

shocked Kenyans into the realisation that their nation, long

considered an island o peace and tranquillity, remained

deeply divided since independence rom British colonialrule in December 1963. It prompted a resh opportunity or

the country to examine the negative practices o the past

ve decades that contributed to a state that still holds sway

in Kenya: normalization and institutionalization o grossviolation o human rights, abuse o power and misuse opublic oce.

Although the PEV was the trigger that led to the estab-

lishment o the Commission, proposals or such a Kenyan

truth commission had been on the agenda since the 1990s

as part o the campaign or a new constitution. The pursuit

or a national transitional justice mechanism entered o-

cial circles ollowing the election into power o the Na-

tional Rainbow Coalition (NARC). In April 2003, the NARCgovernment established the Task Force on the Establish-

ment o a Truth, Justice and Reconciliation Commission

to ascertain public interest in the establishment o a truth

commission. Ater a period o collecting and collating the

views o Kenyans rom across the country, the Task Forceconcluded that indeed a truth commission was necessary.

It recommended the establishment o such a commission

no later than June 2004. However, this was never to be.

Instead, the report and the recommendations o the Task

Force were shelved by the NARC government.

The idea to establish a truth commission revived in the

atermath o the 2007/2008 PEV and in the context o the

Kenya National Dialogue and Reconciliation (KNDR) pro-

cess. The KNDR process resulted in the adoption o, inter

alia, the Agreement on the Principles o Partnership o theCoalition Government (Coalition Agreement) on the basis

o which, the National Assembly enacted the National Ac-

cord and Reconciliation Act on 18 March 2008. The National

Accord paved the way or the establishment o a coalition

government with a President, Prime Minister and two Dep-uty Prime Ministers.

As part o the KNDR process, an agreement or the es-

tablishment o a truth, justice and reconciliation com-

mission (TJRC Agreement) was also adopted. Pursuantto the TJRC Agreement, the National Assembly enacted

the Truth, Justice and Reconciliation Act (TJR Act) on 23

October 2008. The Act received Presidential Assent on 28

November 2008 and came into operation on 17 March

2009.

In terms o the TJR Act, the Commission was inaugurated on

3 August 2009. The broad mandate o the Commission was

to inquire into gross violation o human rights and historicalinjustices that occurred in Kenya rom 12 December 1963

when Kenya became independent to 28 February 2008

when the Coalition Agreement was signed

The work o the Commission was structured into our mu-

tual and overlapping phases: statement-taking, research

and investigations, hearings and report writing. Sta at all

levels were trained and prepared or their various roles toensure that they were sensitive and observed condenti-

ality o all those who gave testimony to the Commission.The Commission also carr ied out civic education and out-

reach activities in partnership with civic organisations and

community based bodies to permit ull and active public

participation in its work and processes. Gender equalitywas a priority in sta composition at all levels and was par-

ticularly important as a means o ensuring that men and

women elt comortable testiying beore the Commis-

sion. To decentralise its presence and reach out to as many

Kenyans as possible, the Commission established regional

oces in Eldoret, Garissa, Kisumu and Mombasa.


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E X E C U T I V E S U M M A R Y Volume I

vii

Primary indings

The Commission nds that between 1895 and 1963, the

British Colonial administration in Kenya was responsible

or unspeakable and horric gross violations o humanrights. In order to establish its authority in Kenya, the

colonial government employed violence on the local

population on an unprecedented scale. Such violence

included massacres, torture and ill-treatment and variousorms o sexual violence. The Commission also nds that

the British Colonial administration adopted a divide

and rule approach to the local population that createda negative dynamic o ethnicity, the consequences owhich are still being elt today. At the same time the

Colonial administration stole large amounts o highly

productive land rom the local population, and removed

communities rom their ancestral lands.

The Commission nds that between 1963 and 1978,

President Jomo Kenyatta presided over a government

that was responsible or numerous gross violations ohuman rights. These violations included:

o

in the context o Shita War, killings, torture,collective punishment and denial o basic needs

(ood, water and health care);

o political assassinations o Pio Gama Pinto, TomMboya and J.M. Kariuki;

o arbitrary detention o political opponents andactivists; and

o illegal and irregular acquisition o land by thehighest government ocials and their political

allies

The Commission nds that between 1978 and 2002,President Daniel Arap Moi presided over a government

that was responsible or numerous gross violations o

human rights. These violations include:

o Massacres;

o unlawul detentions, and systematic and

widespread torture and ill-treatment o political

and human rights activists;

o Assassinations, including o Dr. Robert Ouko;

o Illegal and irregular allocations o land; and

o economic crimes and grand corruption.

The Commission nds that between 2002 and 2008,

President Mwai Kibaki presided over a government that

was responsible or numerous gross violations o humanrights. These violations include:

o unlawul detentions, torture and ill-treatment;

o assassinations and extra judicial killings; and

o economic crimes and grand corruption

The Commission nds that state security agencies,

particularly the Kenya Police and the Kenya Army, have

been the main perpetrators o bodily integrity violations

o human rights in Kenya including massacres, enorceddisappearances, torture and ill-treatment, and sexual

violence.

The Commission nds that Northern Kenya (comprising

ormerly o North Eastern Province, Upper Eastern andNorth Rit) has been the epicenter o gross violations o

human rights by state security agencies. Almost without

exception, security operations in Northern Kenya hasbeen accompanied by massacres o largely innocentcitizens, systematic and widespread torture, rape and

sexual violence o girls and women, looting and burning

o property and the killing and conscation o cattle.

The Commission nds that state security agencies

have as a matter o course in dealing with banditry

and maintaining peace and order employed collective

punishment against communities regardless o theguilt or innocence o individual members o such

communities.

The Commission nds that during the mandate period

the state adopted economic and other policies thatresulted in the economic marginalization o ve key

regions in the country: North Eastern and Upper Eastern;

Coast; Nyanza; Western; and North Rit.

The Commission nds that historical grievances over

land constitute the single most important driver o

conficts and ethnic tension in Kenya. Close to 50 percent

o statements and memorandum received by the

Commission related to or touched on claims over land.

The Commission nds that women and girls have been

the subject o state sanctioned systematic discriminationin all spheres o their lie. Although discrimination

against women and girls is rooted in patriarchal cultural

practices, the state has traditionally ailed to curb harmul

traditional practices that aect womens enjoyment ohuman rights.

The Commission nds that despite the special status

accorded to children in Kenyan society, they have beensubjected to untold and unspeakable atrocities includingkillings, physical assault and sexual violence.

The Commission nds that minority groups and

indigenous people suered state sanctioned systematicdiscrimination during the mandate period (1963-

2008). In particular, minority groups have suered

discrimination in relation to political participation and

access to national identity cards. Other violations thatminority groups and indigenous people have suered

include: collective punishment; and violation o land

rights and the r ight to development.


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viii

Structure o The Report

The Report is structured into our volumes. This volume o

the Report (Volume I) provides an account o how the Com-

mission was ormed, how it interpreted its mandate and

conducted its work, and the challenges it aced in carrying

out its mandate.

The second volume (Volume II) is urther divided into three

sub-volumes. Volume IIA ocuses on the major violations

o bodily integrity rights that were committed during the

Commissions mandate period. These are: unlawul killingsand enorced disappearances (that is, massacres, extra-ju-dicial killings, and political assassinations); unlawul deten-

tions, torture and ill-treatment; and sexual violence. While

much o this volume is ocused on violations directly com-

mitted by the state, it also includes descriptions o killings,

severe injury and violence, sexual violence, detention, andother similar violations committed by non-state actors.

The volume starts with a general overview o the political

history o Kenya. This chapter provides the overall political

context or understanding not only the other specic viola-

tions in this chapter, but also the violations and other ma-terials in the rest o the Report. This general political over-

view is then supplemented by a description o the history

o the state security agencies. While other agencies o the

state were responsible or historical injustices and gross

violations o human rights during the mandate period, the

security agencies were both primarily responsible or many

o the acts o commission discussed in this volume, as wellas the acts o omission (the ailure to provide security) that

allowed many o the violations committed by non-state ac-

tors to occur.

Volume IIB ocuses on some o the unique parts o the Com-

missions mandate concerning historical injustices in Kenya.

The volume has three chapters: land and confict; economic

marginalization and violation o socio-economic rights; and

economic crimes and grand corruption.

Volume IIC ocuses on the stories and narratives o groups o

people that are provided special protection under domestic

and international law because o a history o discrimination

and oppression. These are: women, children and minority

and indigenous people. Historically members o these groups

were not recognized as having the same rights as others. Thedraters o the TJR Act clearly had such history in mind, and

empowered the Commission to put in place special arrange-

ments and adopt specic mechanisms or addressing the

experience o historically vulnerable populations. The Com-

mission thus established a Special Support Unit that ocused

on, among other things, ensuring that the Commissions ac-

tivities adequately addressed and were accessible to histori-

cally vulnerable groups. The Commission also held thematic

hearings that ocused not only on the plight and rights o

the aorementioned three groups but also the experienceso persons with disabilities (PWDs). Indeed, the Commission

did put into place specic procedures in its statement taking

exercise and public hearings to accommodate persons with

disabilities. The experiences o PWDs are refected across the

various Chapters o this Volume.

The third volume (Volume III) o the Report ocuses on is-sues relating to national unity and reconciliation in Kenya.

The Commission was mandated to inquire into the causes

o ethnic tension and make recommendations on the pro-

motion o healing, reconciliation and coexistence amongethnic communities.

The nal volume o the Report (Volume IV) provides a cata-

logue o the ndings and recommendations o the Com-

mission. In this volume is also included the Commissions

recommendation relating to the implementation mecha-nism and reparation ramework.

Thematic Overviews

Political History: A general overview

In order to contextualize gross violations o human rights

and historical injustices that occurred during the mandate

period, the Commission divided the political history o Ken-ya into our distinct epochs. These epochs correspond withthe our political administrations that governed the country

prior to and during the Commissions mandate period:

British colonial era (1895 to 1963);

President Jomo Kenyattas era (1963 to 1978);

President Daniel arap Mois era (1978 to 2002); and

President Mwai Kibakis era (2002 to 2008).

A review o the colonial period by the Commission revealeda litany o oences and atrocities committed by the British

administration against the people now known as Kenyans.

These violations included massacres, torture, arbitrary deten-tion, and sexual violence, most o which were committed,

initially, when the British government orced its authority on

the local population, and later, when it violently sought to

quash the Mau Mau rebellion. Between 1952 onwards, the

British administration established detention camps in whichsuspected members o Mau Mau and/or their sympathisers

were tortured and ill-treated. Others were detained in re-

stricted villages where they were used as orced labour under


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When movements arose to advocate or opening up o the

democtatic space and respect or human rights, President

Mois government unleashed a reign o terror. Between

1986 and 1997, hundreds o individuals were detained and

tortured because they were suspected to be members oillegal organizations. The inamous Nyayo House torture

chambers were designed and built during this period spe-

cically or the purpose o terrorizing those who were criti-

cal o, or perceived to be critical o, the established regime.

In 1991, in response to local and international pressure

prompted by the end o the Cold War, President Moi yieldedto demands or a multi-party state. However, with the advent

o multi-party politics, elections began to be identied with

violence. Ethnicity became an even more potent tool or po-

litical organising and access to state resources. Like his pre-decessor, President Moi lacked the commitment to address

grievances related to land. Instead, irregular and illegal allo-

cation o land became rampant during his era in power.

In December 2002, KANU was dislodged rom power by

NARC under the leadership o President Mwai Kibaki. Asa political party, NARC came to power on a platorm that

promised to curb and ultimately eliminate the political

transgressions and human rights violations that had be-

come so common during the 39 years o KANUs rule. NARC

also pledged to address and rectiy historical injustices. Trueto its commitment and in response to concerted calls by po-

litical activists and civil society organisations (CSOs) in the

rst ew months o attaining power, the NARC government

initiated numerous legislative and institutional reorms and

a range o activities aimed at redressing past injustices.

However, it was not long beore autocratic tendencies and

KANU-like practices began to emerge in the Kibaki adminis-

tration. An inormal clique o powerul individuals who were

keen on promoting narrow and regional interests ormed

around the President. Like President Moi beore him, Presi-

dent Kibaki purged the public service o his predecessorsnominees and lled it with people rom his Kikuyu commu-

nity and the larger GEMA community. The administrationpaid lip service to the struggle against corruption. In 2005, all

pretensions by the Kibaki administration that it was pursuing

reorms and a transitional agenda aded ater the rejection

o the Proposed New Constitution o Kenya in 2005 by themajority o Kenyans.

The period leading up the 2007 General Election was char-

acterised by intense violent activities by militia groups, es-

pecially the Mungiki sect and Sabaot Land Deence Force

(SLDF).The government responded to the violence withexcessive orce. In eect, the General Elections o 27 De-

cember 2007 were conducted in a volatile environment in

which violence had been normalised and ethnic relations

had become poisoned. Fertile ground had been prepared

or the eruption o violence. Thereore, when the results o

the Presidential Election were disputed, and both PNU and

ODM claimed victory, violence erupted.

The scale o the post-election violence (PEV) was unprec-edented. It lasted or a period o two months and subsan-

tially aected all but two provinces in the country. It is esti-

mated that 1,133 people were killed, thousands assaulted

and raped, hundreds o thousands more displaced rom their

homes, and property worth billions o shillings destroyed. Itwas one o the darkest episodes in Kenyas post-independ-

ence history

Security Agencies: The police and the military

The police and the military orces are at the centre o Kenyas

history o gross violations o human rights. While other agen-

cies o the state were responsible or historical injustices and

gross violations o human rights during the mandate period,

security agencies were both primarily responsible or manyo the acts o commission documented in this Report, as well

as the acts o omission (the ailure to provide security) that

allowed many o the violations committed by non-state ac-

tors to occur.

Across the country, the Commission heard horrendous ac-

counts o atrocities committed against innocent citizens by

the police and the military. The history o security operationsconducted by these two institutions, either jointly or sever-

ally, is dominated by tales o brutal use o orce, unlawul kill-ings (sometimes on a large scale), rape and sexual violence,

and burning and looting o property. In security operations,

the police and the military oten employed collective punish-ment: the indiscriminate rounding up o individuals in a spe-

cic area, then brutally punishing them, all with the expec-

tation that this would yield the desired results o increased

security. Thus, since independence, the police and the mili-

tary in Kenya have been viewed and invariably described as

rogue institutions; they are still eared and seen as perennial

violators o human rights rather than protectors o the same.

In this regard, the Commission sought to trace the origins o

practices employed by security agencies during security op-

erations. What emerged is that the practices adopted by the

police and military orces in independent Kenya are starkly

similar to those employed by the same orces during the

colonial period. In essence, Independent Kenya inherited apolice orce that was deeply and historically troubled. From

the 1890s right through to the late 1950s and early 1960s, the

Kenya police orce clearly structured itsel around the polic-ing needs o a small and politically powerul elite and racial

minority. Kenyas police orce was rom the outset built to

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xi

cater to these privileged ew. When, however, the Kenya Po-

lice Force did encounter Arican populations it was with a orce

and devastating violence. Throughout the temporal period o

the Commissions mandate this resort to brutality by the secu-

rity agencies never changed. The police orce remained a lawunto itsel. The Kenya Police Force o today largely resembles

the Kenya Police Force o the colonial period: narrow in out-

look, unclear in mission and violent in tendency.

It is thereore not surprising that the use o excessive and a-tal orce by security agents, especially by the police, against

citizens has been a recurring theme throughout Kenyaspost-independence. Indeed, incidents o extra-judicial kill-

ings go back to colonial period. The practice continued into

the post-colonial period. Research and investigations con-

ducted by the Commission, coupled with testimonies it re-ceived during its hearings, show that during the mandate

period, there was a common trend and pattern o extra-

judicial killings and enorced disappearances o members

o illegal organizations such as Mungiki and Sabaot Land

Deence Force.

Moreover, whenever the police orce has had to disperse

crowds or stop riots, it has used excessive and dispropor-

tionate orce, an approach which has always resulted in the

deaths o largely innocent citizens. Yet, successive govern-

ments have always and consistently denied any involvementby the police or other security orces in extra-judicial killings.

Statements made in Parliament by successive ministers re-

sponsible or Provincial Administration and Internal Security

reveal a pattern o blatant denials and mere justications o

what are otherwise horrible tragedies.

The history o the military paints a similarly grim picture.

During the colonial period, and especially during the emer-

gency period, the military was engaged in the screening and

interrogating o people in order to extract inormation rom

them concerning Mau Mau. It is rom these twin processes

o screening and interrogation that the most astonishingevidence o widespread and institutionalized torture has

emerged. The military would continue to use similar brutaltactics way into the post-independence era and as recently

as March 2008 during Operation Okoa Maisha in Mt. Elgon.

Shita war

The Shita War, waged between 1964 to 1967, represents a

period in Kenyas history during which systematic and wide-

spread violation o human rights (including mass killings) o

Kenyan citizens occurred. Ocially, the death toll stands at

2,000. Unocial estimates place the death toll at 7,000. TheShita War acts as a bridge rom the violations committed bythe colonial power prior to independence and the violations

committed by the newly independent government. The War

arose out o a long history o political unrest in Northern

Kenya where ethnic groups resisted centralised colonial rule.

Ater independence state security agents alongside military

personnel were deployed in what was called the NorthernFrontier District to quell the continuing resistance.

Witness testimonies beore the Commission brought to the

surace the long history o violation o human rights and

related activities in Northern Kenya. From the colonial days,

Northern Kenya had been administered dierently rom the

rest o the country. Travel and movement restrictions wereimposed and administrators were given extraordinary pow-

ers to arrest and detain members o what the state reerred

to as hostile tribes.

The Commission did not get much inormation about the

war itsel because o the secrecy around military operations

and the governments reluctance to provide the inormation

in its possession. However, individuals and communities a-ected by the war submitted memoranda and inormation

to the Commission which enabled it to set out the broadcharacteristics o the war. The Commission established that

the Shita War was characterised by unimaginable brutality.

Mass killings eatured prominently in the witness testimo-

nies and narratives. Pastoralist communities lost almost 90percent o their livestock through heavy handed strategies

in which livestock were shot dead or conscated. Many resi-

dents o the region trace the high levels o poverty experi-

enced by communities o Northern Kenya to the excesses o

the Shita War.

Women narrated horrible stories o rape and other orms o

sexual violence and the military and police were reportedas major perpetrators. During the war, some communities

fed to Somalia to escape the violence and only returned

decades later, in 2000.

The signing o a Memorandum o Understanding in Arusha,

Tanzania on 28 October 1967 between the governments o

Kenya and Somalia marked the ormal end o the war. Wit-

nesses complained that they had no idea what was decidedduring the bilateral negotiations between the Somali and

Kenyan governments as the contents o the agreement were

never revealed to the people o the Northern Kenya, includ-

ing the citizens residing in the north.

Massacres

The history o massacres in Kenya predates colonialism in

Kenya. There were inter and intra-ethnic killings, as illustrat-

ed by the Maasai wars o the 1800s. This was the context inwhich the colonialists entered the scene and opened resh

horizons or mass violence.



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xii

The Commission studied the history o massacres in Kenya

to identiy broad trends and patterns o mass violence that

have recurred throughout Kenyas history. The rst prop-

erly documented massacre in Kenyas colonial past was the

Kedong Massacre o 26 November 1895. Other massacresinclude those committed in the context o the Giriama Re-

bellion o 1912-1914, and the Kollowa Massacre o 24 April

1950. Other massacres were committed during the Mau

Mau uprising between 1952 and 1959. In this regard, the

Lari and Hola Massacres stand out. In all these massacres,the colonial state was present and was always unapologet-

ic. Indeed, the colonial state always tried to minimise, coverup or fatly deny the occurrence o such mass killings.

At independence, the country was blood-drenched with a

history o massacres and entered its uture with historical

baggage that was to aect uture events. The Commissions

research, investigations and hearings revealed that most

massacres in Kenya have occurred in Northern Kenya andhave always occured in the context o what the state reers

to security operations. The Commission has document-

ed the ollowing massacres committed by state securityagents: Bulla Karatasi Massacre; Wagalla Massacre; Malka

Mari Massacre; Lotirir Massacre; and Murkutwa Massacre.

To date, no government ocial has been prosecuted orotherwise publicly held to account or these atrocities. The

Commission also ocused on a ew massacres committed by

non-state actors: Turbi Massacre and Loteteleit Massacre.

Political Assassinations

Kenya has lost some o its best and brightest to political as-sassination: Pio Gama Pinto, Tom Mboya, Josiah Mwangi

Kariuki (popularly known as JM Kariuki), Robert Ouko, Father

Antony Kaiser, Bishop Alexander Muge, and many others. A

number o these deaths have been the subject o high pro-

le investigations; in some cases they have been subject to

repeated investigations. Yet despite all o the investigationsin these and other similar cases, the uncertainty concerning

who was responsible or the killings and why specic indi-

viduals were killed is oten as unclear as it was on the day the

body was ound. Given the ailures o past investigations, the

Commission was ully aware that solving any o the mysteries

surrounding these deaths would be dicult and challenging.

Nevertheless, the Commission gathered inormation, un-

dertook research and investigations, and solicited testi-

mony to understand the context in which such killings took

place; the circumstances and thus probable causes o such

killings; the impact o such kil lings, particularly on the am-

ily and riends o the victim; and the ailure o investigationsto solve the mystery o why a person was killed and who

was responsible. The Commissions work in relation to po-

litical assassinations conrms that the state was complicit

in the assassination o Pio Gama Pinto, Tom Mboya, and

Josiah Mwangi Kariuki.

Detention, torture and ill-treatment

In many ways, and despite the many challenges that it con-

tinues to ace, Kenya is a country whose democratic and

political space is relatively wide and dynamic. At least rom

2003, the state has more oten than not respected citizens

reedom o expression, assembly and the right to associa-tion. However, it was not always this way. The reedom thatKenyans enjoy today is the result o many years o activism

and struggle against dictatorship and state repression or

violence. It is a reedom that came at a high price or many

men and women who dared criticize or oppose Jomo Keny-

attas and Daniel Arap Mois political administrations. Many

o them were detained without trial, tortured, and subjectedto inhuman and degrading treatment. Their amilies were

equally subjected to untold sorrows by state operatives.

Many others succumbed to torture or were killed ater un-dergoing torture.

Research and investigations conducted by the Commis-

sion coupled with the testimonies it received, shows that

widespread and systematic use o torture occurred in the

ollowing contexts:

during the Shita War;

in the atermath o the 1982 attempted coup;

between 1982 and 1991 purposely to quell dissenting po-

litical voices and as part o the crackdown on Mwakenya;

between 1993 to 1997 as part o the crackdown on the

February Eighteenth Revolutionary Army (FERA);

in 1997 ollowing a raid on a police station in Likoni; and

most recently in 2008 during Operation Okoa Maisha, a

security operation to fush out members o the Sabaot

Land Deence Force (SLDF) in the Mount Elgon region.

On the basis o its research, investigations and hearings,the Commission has made, amongst others, the ollowing

ndings:

systematic use o torture was employed by the Special

Branch during interrogations o detained persons in

Nyayo House, Nyati House, police stations, prisons, and

other locations.

Nyayo House basement cells and the 24th, 25th and 26thfoors were used or interrogations and torture ater the



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xiii

attempted coup o 1982, during the Mwakenya crack-

down, and the FERA/M crackdown, and that the state

purposely designed and built these places or torture

purposes.

the State established a task orce or the specic pur-

pose o interrogation and torture o suspects. The Com-

mission has recommended the prosecution o the mem-

bers o the this task orce.

the Judiciary requently cooperated with the prosecu-

tion and security orces in the commitment o violations

by reusing bail and by admitting evidence obtainedthrough torture. The judiciary was also complicit in

these violations to the extent that they conducted trials

beyond working hours.

To prevent the recurrence o torture, the Commission has

recommended the enactment o legislation prohibiting all

orms o torture and other orms o cruel, inhuman or de-

grading treatment or punishment committed both by state

and non-state actors. The Commission has also made the

ollowing recommendations:

that the President oer a public apology to all victims

o torture and unlawul detention and acknowledge

the role o the state in the design and use o the Nyayo

House torture cells or torture purposes

that Nyayo House be converted into a memorial ater

consultation with victims o torture

the establishment o the Oce o the Independent In-

spector o Prisons and All Places o Detention. This oceshall be charged with the unction o inspecting prison

conditions and investigating allegations o torture. TheOce shall also be mandated to investigate all cases o

death in custody. The oce shall issue periodic reports

to the public on the condition o prisons in Kenya and

other matters under its mandate.

The Commission has also recommended the provision o

reparation or victims o unlawul detention, torture and ill-

treatment as per the ramework described in the Chapteron Reparation Framework.

Sexual Violence

Sexual violence is a crime that intimately impacts the victim

both physically and psychologically. It uses the victims own

sexual anatomy to dominate, suppress and control. For a

long time, women and girls were believed to be the main, i

not the only, victims o sexual violence. Over time, there has

been acknowledgement that men and boys are also victimso sexual violence.

The Commission received hundreds o statements rom

women, men and children outlining serious sexual violations

perpetrated by individuals and groups o people including

ordinary citizens and state ocials. A total o 1,104 state-

ments rom adults were received in regard to sexual viola-tions, representing a victim count o 2,646 women and 346

men. The Commission acknowledges that due to shame and

stigma associated with sexual violence, many victims o sexu-

al violence did not report sexual violence to the Commission.

Recognizing that sexual oences are ordinarily complex to

investigate, the Commission adopted specic measures toensure that sexual oences were eectively and sensitively

investigated. Firstly, investigators who had previous experi-

ence in investigating sexual oences and who had under-

gone training on the same, including on the Sexual Oences

Act, were recruited. Secondly, a set o guidelines outlining

the approach to be taken in investigating sexual violence wasprepared. The overall goal o the guidelines was to ensure

that survivors o sexual violence were treated with dignity.

In acknowledgement o the stigma, shame and embarrass-ment associated with sexual violence, the Commission o-

ered victims o sexual violence the option o testiying ei-ther in camera or in public. The idea was to provide victims

o sexual violence with not only a platorm to be heard, but

also a sae environment in which they could share their ex-

periences reely. The Commission also engaged the services

o counsellors to oer psycho-social support beore, during

and ater the hearings to enable the victims not only to nar-rate their experiences but also to cope with what they had

experienced.

The Commissions research, investigations and hearings re-

vealed the ollowing in respect o sexual violence:

Kenyan security orces (particularly the Kenya Police and

the Kenya Army) have oten raped and sexually violated

women and girls during security operations;

Sexual violence has always escalated during conficts

and periods o generalized violence; members o the British Royal Army stationed in Kenya

or military training has been responsible or the rape

and sexual violation o women and girls in Samburu and

Laikipia

in one particular case, the Commission received about

30 statements rom women who were raped in Kituiduring an eviction reerred to as Kavamba Operation.

The Commission has recommended the prosecution o

Nganda Nyenze who supervised the evictions and therape o the women.



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C U S U

xiv

Land and conict

For the majority o Kenyans, land is the basic, and in mostcases, the only economic resource rom which they eke out

a livelihood. The ability to access, own, use and control land

has a proound impact on their ability to eed and provide

or their amilies and to establish their socio-economic and

political standing in society. However, tensions and struc-tural conficts related to land have simmered in all parts

o Kenya throughout the years o independence. In recent

years, many land related problems have degenerated into

social unrest and violence.

Illegal acquisition o large tracts o land rom indigenous

communities during the colonial period rendered many

communities at the Coast and in mainland Kenya landless.

While aected communities expected redress through re-

settlement, restoration o their land and compensation

rom the Kenyatta and subsequent post-independenceadministrations, the government, instead alienated more

land rom already aected communities or the benet o

politically privileged ethnic communities and the politicalelite. This led to deeply held resentments against specic

ethnic communities who beneted rom resettlement at

the expense o those who believe they are the rightul own-ers o the land.

The Commission conrmed that land has been and remains

one o the major causes o intra and inter-ethnic conficts in

the country. However, addressing historical and post-inde-

pendence land injustices has not been genuinely prioritised

by successive governments despite the critical importanceo land to the countrys economic development. There has

never been any sustained eort to address land injustices

that have occurred since colonial times.

The Akiwumi Commission o Inquiry established in 1998

to look into the ethnic clashes related to the 1997 General

Election vividly demonstrated how the skewed land alloca-

tion and ownership has uelled ethnic tension and led to vi-olent conficts throughout Kenya and particularly in the Rit

Valley and Coast regions. During the mandate period, land-related grievances led to the emergence o militia groups in

some parts o the country. The stated aims o these militia

groups oten relates to the reclamation o lands, and the

removal by violent means, o current occupants who theyclaim rendered them squatters. The Sabaot, or example,

took up arms in 2006 in the Mount Elgon region to reclaim

what they consider to be their land.

Politicians oten exploit the real or perceived land injus-

tices especially around election time, or personal gain. The

dangerous mix o land-related claims with political aspira-

tions o specic groups or individuals remains a tinderbox

that could ignite at any time.

The Commission ound that the willing-buyer, willing-sell-er land tenure approach was grossly abused and is one o

the major actors causing disinheritance and landlessness,

especially in the ace o rising human populations.

The unresolved land injustices have led to discriminatory

and exclusionary practices that work against nationhood.

The increasing eeling among the long-disadvantagedpastoral communities and the Kalenjin in particular (both

herders and armers) that they should ght at all cost to re-

claim their stolen land rom the rich oreign (non-Kalen-

jin) settlers is one example. Although no attempt was

made by President Mois government to revoke the landsettlements o President Kenyattas regime, it became in-

creasingly dicult or non-indigenous people to buy land

north o Nakuru. Non-Kalenjin individuals and groups who

bought parcels o land in Kalenjin-dominated areas ound

it hard to get them demarcated or obtain title deeds.

Negative ethnicity appears to be refected even in the set-

tlement o internally displaced persons; those who get re-

settled oten come rom communities able to access politi-

cal power.

The litany o historical injustices relating to land involves a

complex variety o permutations. Almost every type o pub-

lic land was aected: rom orest land, to water catchments,public school playgrounds, road reserves, research arms,public trust lands and land owned by public corporations

and private individuals. Perpetrators o the injustices were

equally varied and include holders o public oce and gov-

ernment leaders at every level, the political and economic

elite, church organisations, individuals and communities.

Those who held sway usurped the institutions o govern-ment to their bidding including the legislature, the execu-

tive and the judiciary.

Ocials who were supposed act as custodians o public

land under the public trust doctrine, became the acilitators

o illegal allocation, increasing landlessness and land scar-

city. The practice o land grabbing in many cases resulted

in violence, as squatters resisted eviction rom governmentland that was oten subsequently lost to land grabbers.

State corporations became conduits or get-rich-schemes

in which public lands were transerred to individuals

and then quickly bought o at exorbitant prices by state

corporations.



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REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION xv

Economic marginalisation and violation o

socio-economic rightsThe TJR Act mandated the Commission to inquire into and

establish the reality or otherwise o perceived economic

marginalisation o communities and make recommenda-

tions on how to address the marginalisation.

Evidence shows that while the majority o Kenyans may nothave been detained without trial or subjected to torture

and other physical integrity violations, governments exclu-

sionary economic policies and practices in the distributiono public jobs and services inficted suering on huge sec-

tions o society at dierent historical moments. As the Com-mission travelled the country collecting statements and

conducting public hearings, the pervasiveness o socio-

economic violations was evident.

In terms o its mandate, the Commission identied a num-

ber o regions as economically marginalised in the post-independence era:

North Eastern (including Upper Eastern) Province;

Nyanza;

North Rit;

Coast;

Western Province.

Although poverty was ound to be prevalent all over thecountry it was disproportionately so in these marginalised ar-

eas. By denition the Commission noted that marginalisation

involves direct and indirect discrimination in the distribution

o social goods and services. The economically marginalised

also tend to be marginalised culturally, socially and politi-cally. The Commission ound that in almost all cases, the state

played a direct role in increasing or decreasing inequality in

communities.

The Commission experienced a challenge in getting reli-

able and quality data, particularly on state unding o social

programmes and inrastructure over the years in regionsidentied as marginalised. In making its assessment the

Commission used a number o indicators o marginalisation

including physical inrastructure, employment (especially

in the public sector), education, health, housing, access to

land, water, sanitation and ood security.

Although Central, Nairobi, South Rit Valley and Lower East-

ern provinces were not proled as economically marginal-ized regions, this does not mean that poverty is not evident

in these regions. In act, some residents o these regions

also considered themselves marginalised at one time or

another.

Other examples o marginalisation include narratives rom

within specic regions based on local rather than national

orces. In Nyanza, the Kuria blamed their plight on the Luoand the Abagusii, while in Nyandarua the residents consid-

ered themselves marginalised by their neighbours within

the region. In the Western region, Bungoma and Vihiga were

seen as beneciaries o the limited social goods through co-

option o individuals by the Moi regime. Co-option o lead-

ers rom the region oten camoufaged the reality o mar-

ginalisation giving the sense o political inclusion that didnot necessarily translate to economic inclusion.

Marginalisation has been used deliberately as a political

tool to punish recalcitrant politicians by punishing their

ethnic group or region. The 1966 allout between Jomo

Kenyatta and Jaramogi Oginga Odinga was the beginningo the disintegration o the Kikuyu-Luo alliance, which was

at the core o KANU at independence. It marked the start o

the marginalisation o Nyanza and the rst blatant use o

negative ethnicity at a political level. Later similar disagree-

ments between Raila Odinga and Mwai Kibaki led to the

blacklisting o Luo Nyanza both in terms o access to capitaldevelopment and appointments to public positions. Testi-

mony beore the Commission suggested that Nyanza had

been in the economic and political cold or all but 10 years

since independence. This isolation increased poverty and

let various social and economic problems unaddressed.

In the case o North Eastern Province, employment, land, in-rastructure, poverty, education and the institutional rame-work and capacity were the key indicators o the margin-

alisation o the region. One o the greatest impediments to

development o the region is the lack o land registries in the

region. As or inrastructure, which includes public utilities

and is a major determinant o development and progress,the region has no tarmac road except the Isiolo-Moyale road,

which is still under construction. The region has the highest

rural population living under the poverty line at 70 percent,

compared to 32 percent or Central province. Lack o oodsecurity is compounded by the erratic and low rainall and

declining pastures and other resources. This in turn createsconfict over these resources, urther depleting the limited

resources and the livestock. The paucity o schools and their

relatively prohibitive cost in an area o widespread poverty

has aected access to the limited education opportunities.

School enrolment stands at about 18 percent or primary

schools and 4.5 percent or secondary schools compared tothe national average o about 88 percent and 22 per cent

respectively or primary and secondary schools respectively.



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REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONxvi

Service delivery or health, water and sanitation were also

way below the national average gures.

The ace o marginalisation was ound to be dierent in di-

erent regions. The relatively ertile land and relative secu-rity o Western province tended to underplay the indicators

and perceptions o marginalisation. While marginalisation

has not reached the extent o that in North Eastern or Nyan-

za, Western was ound to be orgotten in the development

agenda with cash crops and related industries (cotton, sug-arcane, rice and sheries) completely ignored or badly mis-

managed when compared to those o other regions.

The North Rit Valley region was ound to have been mar-

ginalised rom colonial times through to the present. In-

security, a harsh climate and regular inter ethnic and crossborder confict make the region dicult to live in. Absence

o security personnel has led to a localised small arms race

as groups accumulate arms to protect themselves. Succes-

sive governments maintained the same closed area policies

as the colonialists preventing interaction with the rest o

the country eectively marginalising the region. Indicatorsor education, health, inrastructure, water, housing and

sanitation were very low compared to the rest o the coun-

try. Only one hospital serves the six districts o Turkana.

Landlessness is the major indicator o marginalisation at theCoast; land is the most intractable o the problems because

o its historical origins. The original local inhabitants were

dispossessed o their land, rst by the colonialists, and later

by raudulent transactions that again ignored the original

owners o the land. This let most o the land in the 10-mileCoastal Strip in the hands o absentee landlords. Ater inde-pendence, the dispossession o the local people was con-

rmed and certied instead o being rectied, which led to

a palpable sense o a conspiracy against coastal communi-

ties orchestrated by people rom up-country.

Hearings o the Commission were dominated by this prob-lem. The most aected areas were Taita Taveta, Lamu, Malindi

and Tana River districts. The Coast lags behind in terms oalmost all indicators rom inrastructure to health, educa-

tion, housing, water and sanitation. The regions also exhibits

gender marginalisation attributed to religious and cultural

dynamics o the region. Rural areas are served by dilapidatedroad networks compared to Mombasa, Kili, Malindi and

Kwale.

Grand corruption and economic crimes

The ght against corruption is central to the struggle or

human rights. Corruption has always greased the wheels oexploitation and injustice which characterize our world. As

such, corruption is not just a crime that provides an unde-

served benet to a private individual (oten an enormously

large such benet). It is a crime that lessens the availabilityand access to the undamental needs o human lie: ood,

education, health care, shelter, etc. In other words, the crimeo corruption is directly related to the violations o socio-

economic rights.

While corruption violates the rights o all those aected by

it, it has a disproportionate impact on people that belong tovulnerable groups. Examples o these are minorities, indig-

enous people, persons with disabilities, persons living withHIV/AIDS, reugees, prisoners, the poor, women and children.

They are more exploited and less able to deend themselves.

Their vulnerability makes them easy victims o corruption.

Kenyas post- independence history has been marred by

successive cases o huge scandals. In order to appreciate

the magnitude and scale o grand corruption in Kenya, the

Commission resorted to documented cases o grand corrup-

tion rom as early as the KenRen scandal in the 1970s up to

the IEBCs procurement o biometric voter registration kits in2013. In the last two decades, the media and civil society ex-

posed numerous multimillion dollar nancial scams in Kenya

including the ollowing: Ken Ren Scandal; Goldenberg Scan-

dal; Charter House Bank Scandal; and Anglo Leasing Scandal.

In its Chapter on Grand Corruption and Economic Crimes, the

Commission has demonstrated the linkages between these

crimes and the enjoyment o human rights and the huge

cost that Kenya is paying through corruption and economic

crimes.

Women

Men and women experience violations o human rights and

injustices dierently. Building on the provisions o the TJR

Act, the Commission adopted policies and took measures

that ensured that the experiences o and violations su-

ered by women were appropriately and comprehensively

covered both in its work and this Report. These policies andmeasures related to the Commissions statement-taking

process, hearings, ocus group discussions, and other activi-

ties undertaken by the Commission.

Perhaps most importantly, the Commission held separatehearings or women in order to encourage women to speak

about their own experiences. The womens hearings were

ramed as conversations with women. They were presided

over by emale Commissioners and sta, and were thus

designed to be sae spaces where women could reely talkabout violations that were specic to them. The womens



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REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION xvii

hearings were conducted in all regions o the country. In to-

tal, over 1000 women attended the womens hearings across

the country, with an average o 60 women in each hearing.

The Commissions chapter on gender deliberately ocuses onthe various injustices that women aced during the mandate

period. Although women have always constituted hal o

Kenyas population, they have been traditionally relegated to

a subordinate status by patriarchal cultural norms and prac-

tices. Harmul traditional practices in Kenya include, amongstothers, preerence or male children, early or orced marriag-

es, wie beating, emale genital mutilation and widow inher-itance. These norms were normal and sanctioned by law in

the greater period covered by the Commissions mandate. As

such the Commission has ound that women were the sub-

ject o systematic discrimination and/or gender-based perse-cution throughout the mandate period.

An important nding made by the Commission is that in sit-

uations o conficts women are specic targets o violence,

particularly sexual violence which is oten accompanied by

other orms o violations. The Commission has documentedatrocities committed against women during the ollowing

three selected conficts: Mau Mau War; Mount Elgon confict

and the 2007/2008 Post-Election Violence.

Conficts always result in the orced displacement o popu-lations. The Commissions hearings revealed that the states

response to the plight and needs o internally displaced

women was less than satisactory. Generally, the states re-

sponse ell short o its obligations as stipulated in relevant

human rights instruments.

Although most women who testied beore the Com-

mission were victims o displacement occasioned by the

2007/2008 PEV, many o them had been victims o prior

evictions and displacement. During the PEV, women su-

ered violations during fight to the camps or to places

where they hoped they would nd reuge. On resettlemento IDPs under Operation Rudi Nyumbani, the Commissions

hearings revealed that the corruption and mismanagementwhich marred the entire process had a particularly devastat-

ing impact on women. A considerable number o displaced

women told the Commission that they received neither the

start-up capital nor the payment in lieu o housing.

Kenyan Reugee women in Uganda ace a peculiar problem.

During its womens hearings, it became evident that many

women ound themselves in a dilemma as to whether they

should return to Kenya or not. While some women were

willing to return, their husbands were not. As such, theycould not return to Kenya without straining or breaking

their marriages. The general eeling among the Kenyan

reugees in Uganda is that o a people who have been ne-

glected and abandoned by their government.

Kenyan women were also victims o state repression dur-ing the mandate period. As primary victims o state repres-

sion, scores o women, especially politicians, academics or

human rights activists, were targets o state violence both

during Kenyattas and Mois administrations. A number o

emale members o parliament who were vocal in their op-position to repressive rule would be subjected to trumped-

up charges, detained, or even tortured. The vast majority owomen were however secondary victims o state repres-

sion. Many women were widowed ater their husbands

were killed in security operations or died in police custody

ater undergoing torture. Some were subsequently throwninto destitution since husbands are the main breadwinners

in many households in Kenya. Those whose husbands or

sons were detained aced similar ate

In sum, women have suered terrible atrocities just because

o their sex and gender. The Commission has documentedthese atrocities not only or historical purposes, but also as

a bold statement to political leaders and policy makers thatachieving a just and air Kenya partly depends on the initia-

tives they will take to heal the soul o the Kenyan woman. As o

now, the vast majority o women eel abandoned by the state.

Although in recent years many reorms have taken place to

ensure womens empowerment, much more still needs to be

done or these reorms to make substantive and real contribu-tions in the lives o women. There is need or special attention

to the most vulnerable among women: women in rural andslum areas, internally displaced and reugee women, women

with disabilities, women living with HIV/Aids and women be-

longing to minority and indigenous groups.

Children

Children occupy a special place in any eort to understand

the impact o gross human rights violations and historical

injustices. Children are, on the one hand, some o the most

vulnerable people in a community and as such are less ableto deend themselves against those who would do them

harm, and are more likely to suer both short- and long-

term eects rom gross violations o human rights. At the

same time, children are the uture o the country. Their ex-

periences o their community, o their peers, o ocials, ando other people in authority have proound impacts on their

uture, including how they trust, or dont trust, those in au-

thority. In addition, experience throughout the world con-

rms that children who are themselves the victims o abuse

are more likely themselves to be abusers o others whenthey become adults. Some, as the Commission discovered,



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REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSIONxviii

were both victims and perpetrators while still under the age

o eighteen; being orced, or example, to join a militia and

then committing violations as a member o that militia.

Thus, while the mandate o the Commission did not have

a child-specic ocus, the Commission made deliberate e-

orts to acilitate participation o children and young peo-

ple in its proceedings and to ensure that their interests and

views both as direct and indirect witnesses and victims ohuman rights violations were captured. The Commission

designed child-riendly processes to promote the partici-

pation and protection o children. Most notably, the Com-

mission held a thematic hearing in Nairobi that included an

opportunity or children to testiy in their own words in an

environment that was sae and supportive.

The Commission heard horric and heart-rending stories oabuse, violence, and other gross violations o the rights o

children. The Commission also heard the anger o some o

these children some going so ar as to say they wanted

to kill the people who had abused them. As such, the chil-

drens chapter provides a cautionary tale or the uture o

the nation. The roots o tomorrows conficts and violationsare ound in part in the treatment o our children today.

Minority groups and indigenous people

Testimony beore the Commission clearly indicated that the

rights o minorities and indigenous people have been violat-

ed repeatedly since independence. The problem is systemic.

Many oppressive laws sanctioned the collective punish-ment o minority and indigenous communities. While the

laws were supposed to apply across the country in practice

they only applied to communities in Northern Kenya where

a signicant number o minority groups and indigenous

people are to be ound. The anti-stock thet law, or in-

stance, legalised the collective punishment o a communityor the oences o individual members o that community.

Witness testimony beore the Commission showed minori-

ties and indigenous peoples routinely had their collective

identity marginalised. National data classied them as

others creating deep-seated eelings o exclusion among

groups such as the Munyoyoya, Nubians, Suba,Waata,

Ogiek, Sabaot, Kuria, Kona, Bajuni, Hara, Saakuye, Burji,Isaak, Sengwen whose existence was eectively denied by

the state and unknown to the majority o Kenyans. Yet the

right to identity is an important right as it is associated with

several other rights such as the right to culture.

The orced displacement o pastoralists and hunter-gatherers rom their ancestral lands also increased their

marginalisation, deepened their poverty and created con-

fict with neighbours. For instance, the Endorois were bru-

tally evicted rom the trust land they inhabited around lakeBogoria when the government declared the area a game

reserve. They were displaced, lost property and denied ac-cess to traditional cultural and religious areas.

The small population size that characterises minorities and

indigenous groups has denied them infuence and let them

out o policy and decision making even where decisionsdirectly aect them. During the mandate period, minority

groups and indigenous people were unable to access jus-tice at many levels rustrating their eorts to protect other

rights. Minority and indigenous women suered multiple

orms o discrimination. They bore the brunt o inter-ethnic

conficts and insecurity and had diculty accessing socialservices and goods rom education to health services.

The 2010 constitution has several provisions aimed at se-

curing an ecient legal ramework or the protection and

promotion o the rights o minorities and indigenous peo-

ple. However, it needs statutory and institutional mecha-nisms or the realisation o these objectives.

Ethnic tension

The Chapter on Ethnic Tension documents the main causes

and eects o ethnic tension in Kenya. The chapter is based

mainly on testimonies that the Commission heard during itshearings across the country. In addition to holding such hear-

ings, the Commission also organized a thematic hearing on

ethnic tension and violence on 2 February 2012 in Nairobi.During this thematic hearing the Commission heard presen-

tations by experts and relevant institutions such as the Na-

tional Cohesion and Integration Commission (NCIC).

Through its research and hearings, the Commission iden-

tied several causes and drivers o ethnic tension in the

country. The roots o most o these causes are traceable to

the practices o colonial administration. Firstly, the colonial

government pursued a policy o divide and rule in order

to consolidate their hold on the country, and to lessen thepossibility that the Arican population would resist colonial

rule. To that end, they magnied the dierences between

the various communities and regions, and stereotyped

each community in a manner that would sow suspicion, ha-tred and create a sense o otherness.

Secondly, the colonial government created ethnically de-

ned administrative boundaries. In determining such bound-

aries, little serious thought, i any, was given to historicalinter-ethnic interactions and relations. Thirdly, the colonial


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belonging, nationhood, and public trust in political and gov-

ernance institutions.

Since independence, successive governments have em-

ployed silence, denial and selective amnesia whenever indi-

viduals and agencies have raised the need to address these

undamental issues. Painul memories o have been passedrom one generation to another, and as a consequence, pre-

sent generations continue to hold grudges or violations

and historical injustices meted against their oreathers and

mothers. Until now, the scale and impact o human rights

violations and historical injustices have neither been ullyacknowledged nor suciently addressed.

In its work, the Commission recognised that meaningul

reconciliation is not an event, but rather a long process. At

the individual level, the decision to reconcile is a personal

one, aimed at setting the stage and establishing the basisor the beginning o a reconciliation process. Accordingly,

the Commission worked towards ensuring that its activities

in the course o its lie and the result o its work would sub-

stantially contribute to the process o reconciliation.

As part o its reconciliation activities, the Commission con-ducted reconciliation workshops across the country. It also

conducted Workshops on Trauma Healing and Strategy

Formulation in selected places in the country.

The Commission ound that the views o victims on reconcili-

ation are varied. There are those who willingly orgave theirperpetrators and did not even need to meet them. There

are those who simply wanted to know why atrocities werecommitted against them. But there are also those who were

unwilling to orgive and wanted to see their perpetrators

prosecuted or the wrongs they committed. Adversely men-tioned persons, on the other hand, were largely unwilling to

acknowledge any responsibility or events that resulted in

unspeakable atrocities.

Implementation Mechanism

Past experiences with the work o truth commissions andcommissions o inquiry around the world have shown that

a major challenge lies in the implementation o the recom-

mendations contained in the reports o these commissions.

More oten than not, the lie o these commissions ends

at the point o submission o their nal report, leaving the

implementation to other actors who oten do not ollowthrough with the recommendations. This challenge has also

characterized the work o many commissions o inquiry in

Kenya in the past.

The consequences o this challenge have been to limit the

impact o the work o these commissions and to contribute

to public atigue and disappointment about such commis-

sions ater expectations were raised. The draters o the TJR

Act must have had this challenge in mind when they em-powered the Commission to recommend an implementa-

tion mechanism to ensure its recommendations are duly andtimely implemented, and to monitor progress in that imple-

mentation. The government is expressly obligated under the

TJR Act to create the implementation mechanism as set out

in this Report.

The Commission was sensitive to balancing a number o

important objectives in its recommendation or an im-

plementation mechanism. First, it is imperative that the

Commissions Report, the result o close to our years o

work, be widely disseminated and accessible to the Ken-

yan public, and in particular to the thousands o Kenyanswho directly participated in and contributed to the Com-

missions work.

Second, it is imperative that the Commissions recommen-

dations, including but not limited to recommendations re-

lated to reparations, be ully implemented. Third, given theimportance o many o the recommendations o the Com-

mission, including the recommendations related to repa-rations, the Commission realized that the implementation

mechanism would need to be independent o those bod-

ies to which such recommendations are directed in order

to monitor them eectively. In additi

tjrc report volume 1

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