Shores Beyond: TJRC report is out and we must now handle our past

By Donald B Kipkorir

“When the people saw that Moses was so long in coming down from the mountain, they gathered around Aaron and said, “Come, make us gods who will go before us.”

Exodus 32:1

Finally, the long-winding journey of the 8-member Truth, Justice & Reconciliation Commission under Ambassador Bethuel Kiplagat and including my classmate Tom Ojienda, and my friends Margaret Shava and Lady Justice Gertrude Chawatama from Zambia, came to a close when they handed over their 6-part four volumes report to our President last week.

The Report has naturally, engendered mixed reaction; the named condemning and the civil society asking for implementation, and the rest of the country impervious. The Report will be tabled in Parliament within 21 days of being gazetted.

 The Report, like others before, should be archived. But Kenya needs a way out of its past to move on. Being one of the countries whose legal system is Anglo-Saxon, we owe it to King William I aka William The Conqueror (1028-1087), to always resort to commissions when we have an excuse. In 1085, King William I, the founder of modern England, carried out the first known public inquiry across his Kingdom for purposes of taxation. The report is known as Domesday Book. Since then, English speaking countries set up commissions whenever they want to draw attention to a problem, or when they want to bury it.

Kenya has been beset with plethora of problems since independence: tribal clashes, politically instigated clashes, political assassinations, corruption, natural and man-made accidents, and even devil worshipping. With no apparent intention and goodwill to resolve them, we have always formed commissions to sanitise the public then bury the reports in our National Archives. TJRC Report will receive the same fate. But this time, we can bury it differently.

We enacted the TJRC with clear objectives of promoting national peace, justice, unity, healing, reconstruction and dignity. I highly doubt if the recommendations meet these ambitious, noble and broad objectives. It is like the TJRC was to conjure an abracadabra moment for Kenya and in one sleight of hand wipe out all our past historical injustices. As they say, the intentions maybe noble, but the ambition was illusory.

Prof Elizabeth Kübler-Ross (1926-2004) that distinguished leader of psychiatry said in her seminal book, On Death And Dying, that after a loss of a loved one, we enter into five stages of healing: denial, anger, bargaining, depression and finally acceptance, then we move on. This healing process has now been applied to all kinds of losses, from love to politics to property. Our recent presidential election made those of us who voted for Raila Amolo Odinga to go through this process. Some of us have completed the process. Many have not.

Some sections of the country feel deprived from the national process of development and employment. Others believe that post-independence Government dispossessed them of their ancestral lands. The people of Rift Valley and Coast Provinces complain of dispossession. The people of North Eastern, Nyanza and Central Provinces have issues with politically instigated killings. These issues can never be resolved by Commissions, however well-meaning.

Our Judiciary, as established under Chapter 10 of the Constitution, envisages creations of as many specialised High Courts as is possible. The pillars of the Judiciary as set out in Article 159 are to provide distributive, procedural, restorative and retributive justice. We need to set up a High Court Division that will deal specifically with all manner of historical claims and call it the High Court (Historical & Restorative Justice) Division. Let all who have claims going back to pre-colonial times approach the seat of justice and establish their claims. The standard of proof will be lowered to be one of reasonable basis, and not the ordinary one of establishing a prima facie case.

Once we establish this specialised High Court, we will not need to be rushing to Commissions for national therapy. This Court will be open to all those with real, imagined and even surreal claims. Even the mad have the right to be heard. If only Queen Marie Antoinette (1755-1793) had such a High Court, she would have known that the people didn’t have money to buy cake, leave alone bread. And the revolution wouldn’t have removed the House of Bourbon from the magnificent Château de Versailles. Everyone wants to afford to buy bread. Everyone deserves equal chance to succeed. The choice thereafter to succeed or fail is individual. And there will be no, tunaomba serikali.

The writer is an advocate of the High Court of Kenya.