Key Rights Report in Spotlight After Kenya Violence

In the wake of recent attacks in Kenyan coastal areas which have killed more than 90 people, analysts say old grievances have resurfaced, making it all the more important for the government to act on a major report designed to address past injustices concerning land and other issues.

It is not yet clear who is behind a series of attacks that began on June 15 and 16 when armed men attacked the towns of Mpeketoni and Maporomoko in Lamu County, killing at least 65 people.

The Somali Islamist group al-Shabab claimed responsibility for those attacks as well as for subsequent raids, including an attack on a bus last weekend in the coastal town of Witu that killed seven people.

Al-Shabab has attacked a number of targets in Kenya in revenge for the country’s military intervention in southern Somalia, and representatives of the international community, including the United States embassy in Nairobi, have held them responsible for the Mpeketoni and Maporomoko strikes.

However, President Uhuru Kenyatta blamed the attacks on “local political networks” and described them as “politically motivated ethnic violence” targeting an unspecified “Kenyan community”. The victims of the Mpeketoni attack were largely members of Kenyatta’s ethnic group, the Kikuyu, and one theory is that they were targeted by locals who resent their presence.

The governor of Lamu County, Issa Timamy, has been charged with orchestrating the unrest. (See Kenyan Politicians Urged to Unite Following Attacks.)

While it remains unclear who was behind the attacks, analysts say the violence – and especially the ensuing heated rhetoric – have brought out longstanding inter-communal animosities in the Lamu area. That points to a need to address tensions that have persisted below the surface in areas like this. A good way to start, experts say, would be to start implementing the recommendations of a report which the Truth, Justice and Reconciliation Commission (TJRC) submitted to President Kenyatta in May 2013.

One of the report’s conclusions is that land-related injustices have been a principal cause of violence between different ethnic groups across Kenya.

In Coast region specifically, the TJRC report outlines longstanding discontent among indigenous communities which felt marginalised after Kenya gained independence in 1963. They were not awarded land titles as the British left, and many were subsequently forced from their properties, which were taken over by incomers who still claim ownership today.

These settlers were typically supporters of Kenya’s first president Jomo Kenyatta – Uhuru’s father – and members of his ethnic community, the Kikuyu.

“All the land in what currently constitutes Lamu County was categorised as government land, while the local indigenous population was considered as ‘squatters’ on the land, yet it was their own,” the report states.

In later years, the report says, there was a “persistent failure by successive governments” to address these issues.

Prior to the March 2013 general elections in March last year, resentment about land and access to resources in the wider coastal region even sparked a separatist movement.

Bashir Abdullaih, a retired Kenyan major-general and now a security expert, told IWPR that the recent violence made it imperative to start putting the TJRC report’s recommendations into effect.

“The attack, by whichever group, has rekindled the thorny issue of land and hence reawakening ethnic tensions,” he said. “This argument [outlined in the TJRC report] has resurfaced with the attack in Mpeketoni.

“We all know the history of the settlement by outsiders, as claimed by the locals. And unfortunately, this simmering discontent might spread to other areas in Lamu.”

Cedric Barnes of the International Crisis Group believes that even if al-Shabab had a role in the recent attacks, it might have found sympathy and assistance from local people keen to vent their own anger.

“There is some merit to the idea that this might not just be al-Shabab, and al-Shabab might be exploiting people that were formally associated with more radical secessionist coastal grievances, and that they may have found common cause,” he told IWPR.

The TJRC was established by an act of parliament in 2008 after the outbreak of mass violence that followed a disputed presidential election in December 2007. The commission was set up as part of a peace deal and eventual coalition agreement between the political foes.

The final report, released last May, detailed gross human rights abuses and other long-term injustices in Kenya committed between December 1963 and February 2008, and outlined clear recommendations for government action. (See Kenyan Authorities Urged to Implement Human Rights Report.)

Among its recommendations, the TJRC said the national land commission should act swiftly to reclaim all property that had been improperly acquired, and conduct a process to demarcate and register all government-owned land, including plots that were previously managed by local authorities.

Ron Slye, an American law professor at Seattle University and a former TJRC commissioner, said the report offered an opportunity to right past wrongs.

“If Kenya is not willing to address those historical injustices, then grievances will fester, and at some point erupt into further violence,” he told IWPR. “That was the lesson of the 2007 election.”

“The TJRC report is not the ultimate answer,” Slye continued. “But it provides one entry point into what should be a broader and more intense process of addressing the past in order to create a more just and united future.”

Last month, Martha Karua, the leader of NARC Kenya, a political party, called on the government to implement the report’s findings in the interests of national cohesion.

“Kenyans no longer feel safe in the country because of inadequate responses by our security agencies on terror attacks,” she said. “The government needs to implement the TJRC report, which has been pushed under the carpet.”

CIVIL SOCIETY PRESSURE

The 2008 law on the TJRC provided a clear schedule for the government to formally publish the report and implement its recommendations. But more than a year after the report was submitted to Kenyatta, this has not been done. The report was tabled in parliament last year but it has yet to be debated or officially published.

According to the TJRC Act, the implementation process should have started within six months of publication of the final report in May last year.

The act states that the government must set up an implementation mechanism with a committee to oversee the process, with quarterly reports on progress in implementing the recommendations.

Last December, however, Kenyatta signed the Truth Justice and Reconciliation (Amendment) Act, which enables parliament to revise the report’s findings. The amended wording says that the findings should be implemented “in accordance with recommendations” from the lower house of parliament.

Some of the individuals criticised in the report have already filed court cases to challenge its content. They includes relatives of the president who have accused the commission of linking them to irregular acquisitions of land under the rule of his father, Jomo Kenyatta.

Senator Beth Mugo and her brother Ngengi Muigai have filed cases at the High Court in which they deny having acquired land by improper means. Mugo wants the court to block the TJRC from implementing its recommendations.

Some advocacy groups argue that those who support the TJRC process and want to see its findings acted upon should file counter-claims in court to challenge such moves.

“Individuals or civil society organisations can apply to be enjoined in the petitions that have been filed by those challenging the TJRC report in court as either interested party or as ‘friend of the court’,” Elijah Ambasa, a governance and policy officer at Transparency International, told IWPR.

The human rights community has had an uneasy relationship with the TJRC due to controversies surrounding its work. The final report left out the dissenting conclusions of the commission’s three international members in relation to the chapter on land and conflict. The three commissioners subsequently alleged that the president's office called for an advanced copy before it was published and told the commission to remove particular sections.

TRJC chairman Bethuel Kiplagat was himself implicated by the report, which accused him of acquiring land illegally and involvement in the planning of a government security operation that led to a massacre of ethnic Somalis in northeast Kenya in 1984. He refused to stand down.

Christopher Gitari, head of the Kenyan branch of the International Centre for Transitional Justice (ICTJ), says that rights groups are also to blame for failing to put sufficient pressure on the government to implement the report.

“Civil society has not been robust enough in ensuring that the two state institutions [the executive and parliament] fulfil what are legislative obligations,” Gitari told IWPR, referring to the original version of the TJRC law.

As well as ICTJ, advocacy groups have also suggested that NGOs should make more of an effort to get the report’s findings implemented.

The Kenya Human Rights Commission (KHRC) said it would be possible to file a lawsuit to challenge the government’s failure to follow the procedures outlined in the original TJRC law. A challenge could also be lodged under laws assuring rights to information given that the government has not published the report, the body said.

“The [TJRC] Act required that after it hands over the report the government should avail it to public,” Esther Waweru, a programme manager at KHRC, told IWPR. “Secondly, one can go to court to challenge the delay in establishing implementation committee and get orders for implementation.”

Another group that is considering action is the International Centre for Policy and Conflict (ICPC) in Nairobi. Its executive director, Ndung’u Wainaina, told IWPR that ICPC and other civil society groups were planning a legal challenge.

“The buck stops with the office of the attorney general and the department of justice,” Wainaina said. “We will file a case against them for failing to conform with the TJRC Act 2008.”

This article was produced as part of a media development programme implemented by IWPR and Wayamo Communication Foundation.