Kenya Truth, Justice and Reconciliation Commission (2008-2013)

Introduction

The Truth, Justice and Reconciliation Commission (TJRC) was established in the wake of the 2007-2008 post-election violence in Kenya, with the mandate to investigate gross violations of human rights and economic rights over the period of 1963 to 2008. The commission operated from 2008 to 2013, its investigations spanning the colonial era and the independence struggle, as well as more contemporary political and electoral violence. The commission found that sexual violations were an instrument of terror and displacement during periods of violent conflict and its final report documents widespread conflict-related sexual violence (CRSV).

Conflict and Prevalence of Sexual Violence

During the period investigated by the TJRC, women and girls bore the brunt of sexual violations and were found to be disproportionately targeted. Men and boys were also identified as victims/survivors of sexual violence (TJRC, 2013b).

Under British colonial rule in Kenya, sexual violence was employed as a means of disciplining and humiliating those in opposition. According to the TJRC final report, when the colonial government clamped down on the Mau Mau rebellion (1952-1960), thousands of men and women were arrested and sent to detention centres. Many brought forth accounts of torture, where men were castrated and women were raped to force their confessions to involvement with the Mau Mau. Women were often stripped naked and beaten, objects were inserted into their genitals and their breasts were squeezed between heavy objects. Sexual violence was also carried out by African officers working for the colonial state, often with implicit or explicit approval by the colonial state.

Sexual violence was also pervasive during ethnic and political violence in Kenya. With the start of multi-party politics and elections, there were various episodes of violence. Data received by the TJRC through interviews, statements and oral submissions revealed patterns of consistent and widespread sexual violence targeting women and men during electioneering periods as well as during ethnically and politically instigated conflict.

Of the 1,104 statements received by the commission with regard to sexual violence, nearly a quarter (255) were committed in the context of ethnic/political clashes. The alleged perpetrators included members of organised militia groups and state security agents deployed to quell violence in areas experiencing ethnic aggression. During these times, sexual violence was used to intimidate, degrade, humiliate, discriminate against and control those belonging to particular ethnic communities or ‘tribes’ perceived to be in support of the ‘wrong’ side of the political divide. Some accounts of sexual violence against women also indicated the attacks were intended to instil fear and intimidate them into dropping their political bids in favour of their opponents (ibid).

During the 2007 elections, tensions rose between the Luo and the Kikuyu ethnic groups, with opposing candidates purporting to represent each group. Sexual violence against women and girls during the 2007-2008 post-election violence mainly took the form of gang and individual rape, mutilation of genitalia, the deliberate transmission of HIV and forced pregnancies (Nyamongo, 2011). Many women became targets of sexual violence on the basis of ethnicity and political affiliation, victimised as part of the targeted communities in ethnic clashes or due to opportunistic predation and criminality (Rohwerder, 2015).

Men and boys were also subjected to various forms of sexual violence, including sodomy, rape, castration, genital mutilation and forced circumcisions (TJRC, 2013b). Traditionally, the Luo do not practice circumcision, while the Kikuyu do as a cultural ritual and a rite of passage for young men entering into manhood. In acts of sexual violence, Kikuyu men forcibly circumcised many Luo men as a form of degradation designed to emphasise their lower standing. They also forcibly infected many of these men with HIV (Auchter, 2017).

Sexual violence against women and men was also carried out by state security agents. During the 2007-2008 post-election violence, the Nairobi Women’s Hospital Gender Violence Recovery Centre reported three times its normal intake. It is estimated that 8% of women victims/survivors of sexual violence did not formally report their violations to the police. Underreporting was attributed to mistrust of the police and security forces, which made it difficult for victims/survivors to report cases of sexual violence even after the political situation stabilised (Bere et al., 2013).

Contributing Factors around Sexual Violence

Cultural practices across different communities in Kenya have significant implications for gender relations and the distribution of power. In most pre-colonial Kenyan societies, women did not hold significant positions in the political decision-making space. Exceptions to this included some Luo, Kikuyu, Gusii, Giriama and Meru communities, where women leaders played a significant role in leadership. Gender inequality and oppressive gender norms deepened and manifested in new ways under colonial rule, where the significant political role women played in traditional cultures was ignored (Ochwanda, 1997).

In contemporary Kenyan society, patriarchy is still manifested across a number of cultural practices that objectify and subject women to numerous violations of their rights. These include payment of a dowry or bride price, widow inheritance and female genital mutilation or cutting. These practices are founded on a culturally sanctioned notion that women are men’s property (TJRC, 2013c).

The implementation of a new constitution in 2010 was a major achievement in the fight for gender equality and equity. Article 27 of the constitution guarantees equality for women and men, offering the equal and full enjoyment of all fundamental freedoms and rights, including education, while asserting that men and women have the right to equal opportunities in every sector and the right to equal treatment. The constitution also established the Kenya National Human Rights and Equality Commission, which developed a framework to promote gender equity and equality while also handling gender mainstreaming (Athiemoolam et al., 2013).

Transition and Establishment of the Truth Commission

The TJRC was created by parliament through the Truth, Justice and Reconciliation Act in 2008. The commission was conceived through the negotiations of the Kenya National Dialogue and Reconciliation (KNDR) in the wake of the 2007-2008 post-election violence.

The TJRC had a broader scope and mandate than the previous Commission of Inquiry on Post Election Violence, an international commission established by the government in February 2008. The TJRC was set up to investigate armed conflict and negative practices in the previous five decades that contributed to the normalisation and institutionalisation of gross human rights violations, abuses of power and misuse of public office.

During the mediation process and the formation of the KNDR, civil society contributed to the dialogue, including several women-led organisations. Various women’s organisations came together to ensure women’s issues and priorities were presented to the mediation team in the KNDR. This process, headed by Graça Machel, culminated in a memorandum to the panel calling for the mediators to implement United Nations Security Council Resolution 1325, which urges all actors to increase the participation of women and incorporate gender perspectives in peace and security efforts. The memorandum drew attention to the gendered dimensions of the conflict and different forms of violence and made recommendations to address the root causes of the conflict through constitutional reform, strengthening of electoral bodies and transitional justice mechanisms (McGhie & Wamai, 2011).

Mandate and Scope in Respect of CRSV

The TJRC’s mandate included establishing a record of violations of human rights and economic rights inflicted by the state, public institutions, public officials and non-state actors; investigating economic crimes; inquiring into acts of state repression, causes of political violence and ethnic tension; facilitating the granting of amnesty; and compiling a report on the activities and findings of the commission with recommendations on measures to prevent future occurrence of such violations.

Sexual violence, “crimes of a sexual nature” and “gender-based violations” were included in the mandate. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation and any other form of sexual violence of comparable gravity were defined as acts constituting crimes against humanity. Rape or any other form of sexual violence were categorised as gross human rights violations (TJRC Act, 2008).

Truth Commission Operations

The gender policy adopted by the TJRC committed its commissioners and staff to “mainstream gender in all operational undertakings including in statement taking, investigations, civic education and hearings” (TJRC, 2013c, p. 6). Attention and sensitivity to gendered experiences of conflict and particularly sexual violence were evident in the commission’s operations. The TJRC recruited investigators who had training and experience in investigating sexual offenses. It developed guidelines for investigations of sexual violence cases to ensure statement-taking procedures were sensitive to the experience and needs of vulnerable groups, specifically women (TJRC, 2013c). Special support services for victims and witnesses were provided for hearings on gender and minorities headed by Director Special Support Services Nancy Kanyago (TJRC, 2013a).

The commission received hundreds of statements from women, men and children outlining serious sexual violations perpetrated by citizens and state agents. A total of 1,104 statements were taken from adult victims/survivors, of whom 2,646 were women and 364 were men (ibid). The commission recognised that the low number of submissions from men was linked to the social stigma associated with sexual violence against men in particular. In fact, many women testified about the sexual violence that their husbands or sons experienced during times of conflict (TJRC, 2013b).

Truth Commission Final Report

In order to adequately understand CRSV, the commission investigated a wide range of sexual violations during five different conflict periods in the mandate period: the colonial period, cattle raids, security operations, the Shifta War, the Mount Elgon conflict and security operation, and sexual violence during ethnic and political violence (TJRC, 2013b). These sections of the final report document the witness accounts and testimonies of the victims/survivors of sexual violence.

The commission found that sexual violence was committed throughout these conflicts and included acts of gang rape, sodomy, defilement, sexual slavery, sexual assault, sexual torture, and forced circumcision and other mutilation of sexual organs. Perpetrators took advantage of the breakdown of the social order and general lawlessness during conflict to commit sexual violence with impunity. In most cases, victims were attacked on the basis of ethnicity and assumed political affiliations (TJRC, 2013d).

The TJRC’s definition of sexual violence includes the following crimes:

1. Rape;
2. Sexual assault;
3. Grievous bodily harm;
4. Assault or mutilation of female reproductive organs;
5. Sexual slavery;
6. Enforced prostitution;
7. Forced pregnancy;
8. Enforced sterilisation;
9. Harmful practices, inclusive of all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and children, such as their right to life, health, dignity, education and physical integrity, as defined in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa;
10. Sexual exploitation or the coercion of women and children to perform domestic chores or to provide sexual comfort;
11. Trafficking in, and smuggling of, women and children for sexual slavery or exploitation;
12. Enslavement by the exercise of any or all of the powers attaching to the right of ownership over women and includes the exercise of such power in the course of trafficking in women and children;
13. Forced abortions or forced pregnancies of women and girl children arising from the unlawful confinement of a woman or girl child forcibly made pregnant, with the intent of affecting the composition of the identity of any population or carrying out other grave violations of international law, and as a syndrome of physical, social and psychological humiliation, pain and suffering and subjugation of women and girls;
14. Infection of women and children with sexually transmitted diseases, including HIV/AIDS; and
15. Any other act or form of sexual violence of comparable gravity (TJRC, 2013b).

This definition was drawn from the International Conference on the Great Lakes Region Protocol on the Prevention and Suppression of Sexual Violence against Women and Children. It encompasses “harmful practices, inclusive of all behaviour, attitudes and/or practices which negatively affect the fundamental rights of women and children, such as their right to life, health, dignity, education and physical integrity,” as defined in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

The commission’s definition shows an explicitly gendered focus on the experiences of women and girls. The report acknowledges that while both men and women may be targets of sexual violence, women are the predominant victims of this violence. The TJRC’s final report states that sexual violence against men was severely under-reported and under-investigated and noted the need for definitions to become more inclusive in order to extend protection to male victims/survivors. The commission also found that the elderly and persons with disabilities were targets of sexual violence during armed conflict. There were no findings on sexual and gender minorities and members of the LGBTQI+ community who had been affected by CRSV.

In Volume 2A, the TJRC reports on the physiological, psychological and social impacts of sexual violence on victims/survivors and their families. A number of victims/survivors stated that they experienced gynaecological complications and were unable to treat themselves due to the high cost of medical services and others had tested HIV positive as a result of rape. Pregnancy, miscarriage, mutilated genitals, incontinence, sexual transmitted infections like HIV/AIDS, sexual dysfunction and infertility due to damaged reproductive organs as a result of sexual violence also affected the lives of victims/survivors and their families. Many victims/survivors, mostly women, testified on behalf of other victims who had died as a result of the severe health consequences of sexual violence.

The final report notes that social stigma around sexual violence also affected victims/survivors. In the wake of the 2007-2008 post-election violence, many marriages broke up as women who had been raped were ostracised and abandoned by their husbands. Many young girls were forced to miss school due to forced pregnancies. Male victims/survivors were made to feel emasculated as a result of the sexual violence against them. Acts of sexual violence were found to affect the Kenyan family structure and traditional gender roles (TJRC, 2013b).

The commission found that the perpetrators of sexual violence included state security agents, ordinary citizens, members of organised militia groups and British soldiers stationed in Kenya for training purposes. Sexual violence was pervasive not only in situations of violent conflict, but also in homes, places of confinement, prisons, police stations, centres of interrogation, internally displaced persons camps and forceful evictions. The majority of violations were committed by state security agents, particularly the General Service Unit, the Kenyan police, the Administration Police and the Kenyan military. Security agents used sexual violence as a weapon to terrorise, suppress, intimidate and humiliate communities (TJRC, 2013d).

The final report states that cases of sexual violence remained largely unreported due to social stigma and cultural taboos around sex and sexual violation. Moreover, victims/survivors faced possible harassment by hostile or disinterested police officers, fear of encountering their perpetrators at police stations, threats from perpetrators, and lack of clear reporting lines. Despite some victims/survivors reporting incidents of sexual violence, their complaints were either not recorded or followed up for investigation and many victims were unable to afford legal services (ibid). Therefore, many reported cases went without investigation or prosecution.

In terms of access to medical care, the commission found that there were insufficient medical facilities in the country with the expertise and equipment to provide services to victims/survivors of sexual and gender-based violence.

Truth Commission Recommendations

The TJRC’s recommendations relating to CRSV included an apology by the president for acts of sexual violence committed by state security agents during security operations and other periods of violence; the setting up of an Office of the Special Rapporteur on Sexual Violence; and the formulation of a new Code of Conduct and Ethics for the National Police Service. The commission also recommended that Gender-Based Violence Recovery Centres be set up in every county to provide comprehensive services for victims/survivors of sexual violence, including medical and counseling services (TJRC, 2013d).

The commission further recommended the provision of reparations for victims/survivors of sexual violence as per its proposed reparation framework. Victims of CRSV were not treated as a special category within the reparation framework of the commission. The final report does not include a specific category for reparations for sexual violence. Victims of rape and victims of sexual and gender-based violence other than rape were placed under the category of victims of “violations of the right to personal integrity.”

Sexual and gender-based violence victims who were “demonstrating urgent health concerns with a causal relationship to the violations” were placed in the “Priority A: Most Vulnerable” category. Those eligible for reparations under this category would receive monetary compensation in the form of a standardised 10-year annual payment. Victims demonstrating a need for rehabilitation services would be eligible for medical care and psychosocial support services vouchers.

Victims of sexual violence would also be eligible for several collective reparations measures under the “Priority B: Collective Reparations” category, both material (socioeconomic) and non-material (commemorative). These were to be made available to victims/survivors of structural inequality and gender-based violations, which included rape as a means of repression. The “Priority C: Individual Reparations” category would be accessible to victims/survivors who could not access material reparations under Priority A or B. CRSV victims under Priority C would be eligible for monetary compensation in the form of a standardised five-year pension, as well as non-material reparations such as restitution of rights, dignity and recognition (ibid).

Implementation of the Truth Commission Recommendations

Few of the TJRC’s recommendations have been implemented since the publication of the commission’s final report. The report was not formally adopted by parliament and, in 2013, the TJRC Act was amended by the National Assembly, which further stalled implementation. The amendment stated that implementation would commence after consideration of the report by the National Assembly and removed timelines for carrying out recommendations. The report remains within the precincts of parliament awaiting its consideration. It is unclear whether the TJRC’s recommendations on reparations will be implemented as long as the report has not been passed by parliament as required by law (Songa, 2018).

In March 2015, then President Uhuru Kenyatta announced that he had instructed the Treasury to establish a fund of 10 billion Kenyan shillings (approximately USD 9,804,000) to be used for restorative justice. In April 2015, the president and Chief Justice Willy Mutunga made public apologies to victims of historical human rights violations in line with the TJRC’s recommendations (HRW, 2016).

While the act of a formal apology and the creation of a fund for the distribution of reparations were seen as promising by the Kenyan population, there has been lack of progress in dispensing the funds. This was illustrated in December 2015, when a victims’ group presented a petition to the Kenyan parliament calling for the taking up of the recommendations of the TJRC, and specifically the approval of the budget allocations of the 10 billion Kenyan shillings (Shackel & Fiske, 2016). This petition included a call to enact the necessary legislative frameworks to administer the fund.

The Kenyan government implemented some measures to compensate victims/survivors of the 2007-2008 post-election violence. However, these did not extend to all victims/survivors of sexual violence, who only qualified for compensation if they were displaced from their homes and/or lost property during the violence (HRW, 2016).

Some of the Gender-Based Violence Recovery Centres recommended by the TJRC have been set up. However, these centres are not in all counties or 24-hour facilities. Many of them are claimed to be inadequate to cater for the provision of comprehensive emergency medical and legal services and counseling for victims/survivors of sexual violence (Grace Agenda, 2019). In 2019, the National Survivors and Victims Network presented a public petition to the Senate, which demanded that Senate approve the budgetary allocations and implement recommendations to establish Gender-Based Violence Recovery Centres in all 47 counties and make services accessible to victims/survivors. In November 2020, the Kenyan government launched guidelines to standardise establishment of recovery centres in all health facilities (Gitau, 2020).

Issues of corruption are an impediment to implementation (Shackel & Fiske, 2016), as is the lack of political goodwill stemming from the aftermath of the 2007-2008 post-election violence (Akech et al., 2021). As of 2023, the TJRC final report is yet to be adopted by parliament. The government gazetted the TJRC final report in 2019 but excluded volumes IIA and IIC, which provide lists and details of human rights violations, including cases of sexual violence as gross human rights violations (Ongaro, 2021).

In March 2019, Grace Agenda and the National Victims and Survivors Network filed a petition with the Senate seeking immediate implementation of the TJRC’s recommendations regarding reparations (Grace Agenda, 2019). However, victims/survivors are yet to receive comprehensive rehabilitation services and full monetary compensation to meet their needs and, for many, the needs of children born of rape (Ongaro, 2021).  Survivor-led organisations such as Grace Agenda continue to raise awareness and advocate for government implementation of reparations and provision of psychosocial services for victims/survivors of sexual violence.

References

Akech, M., Bwire, B., & Meroka-Mutua, A. 2021. “Utilising the Due Diligence Standard to Interrogate Kenya’s Accountability Efforts with Regard to Survivors of Sexual Violence in the 2007-2008 Post-Election Violence.” African Human Rights Law Journal, 21(1): 389-416. 

Auchter, J. 2017. “Forced Male Circumcision: Gender-Based Violence in Kenya.” International Affairs 93(3): 1339-1356. 

Bere, E., Masinjila, M., & Thomas, K. 2013. “Political Transition and Sexual and Gender-Based Violence in South Africa, Kenya, and Zimbabwe: A Comparative Analysis.” Gender & Development 21(3): 519-532.

Gitau, B. 2020. “State Launches Guidelines for Violence Centres.” People Daily. https://www.pd.co.ke/news/state-launches-guidelines-for-violence-centres-60313/

Grace Agenda. 2019. “Republic of Kenya 35th Session of the Universal Periodic Review (UPR) Submission by: Survivors of Sexual Violence in Kenya, as represented, in part, by Grace Agenda and with participation from the Survivors of Sexual Violence Network Kenya.”

Human Rights Watch (HRW). 2016. “‘I Just Sit and Wait to Die’: Reparations for Survivors of Kenya’s 2007-2008 Post-Election Sexual Violence.” https://www.hrw.org/report/2016/02/15/i-just-sit-and-wait-die/reparations-survivors-kenyas-2007-2008-post-election

Kibui, A.W., Athiemoolam, L., & Mwaniki, L. 2014. “Gender Equity In Education Development In Kenya and the New Constitution For Vision 2030.” International Journal of Scientific Research and Innovative Technology, 1(2): 21-34.

McGhie, M.P., & Wamai, E.N. 2011. “Beyond the Numbers: Women’s Participation in the Kenya National Dialogue and Reconciliation.” Centre for Humanitarian Dialogue. https://hdcentre.org/insights/beyond-numbers-womens-participation-in-the-kenya-national-dialogue-and-reconciliation/

National Victims and Survivors Network. 2019. “Public Petition Appealing to the Senate of Kenya to establish measures toward rehabilitation services to victims of past gross human rights violations as identified through the Truth, Justice and Reconciliation process.” http://parliament.go.ke/sites/default/files/2020-10/Petition%20concerning%20establishing%20measures%20towards%20rehabilitation%20services%20to%20victims%20of%20past%20HR%20violations%20as%20identified%20through%20TJRC.pdf

Nyamongo, G.B. 2011. “Effects of Gender-Based Violence: A Situation Analysis of the 2007 Post- Election Ethnic Violence in Kenya.” GEXcel Work in Progress Report 11. https://www.diva-portal.org/smash/get/diva2:792380/FULLTEXT01.pdf#page=121

Ochwada, H. 1997. “Politics and Gender Relations in Kenya: A Historical Perspective.” African Development 22(1): 123-139.

Ongaro, B.A. 2021. “Reparations to Victims of Gross Human Rights Violations Is the Foundation to Building Bridges.” Africa Centre for Ideas and Dialogue. https://africacentreforideas.org/2021/04/14/reparations-to-victims-of-gross-human-rights-violations-is-the-foundation-to-building-bridges/

Rohwerder, B. 2015. “Conflict Analysis of Kenya.” GSDRC, University of Birmingham. http://www.gsdrc.org/wp-content/uploads/2015/12/KenyaConflictAnalysis.pdf

Shackel, R., & Fiske, L. 2016. “Making Justice Work for Women: Kenya Country Report.” University of Sydney. https://ses.library.usyd.edu.au/bitstream/handle/2123/15629/Kenya?sequence=2

Songa, A. 2018. “Transitional Justice in Kenya as a Path to Transformation.” Centre for the Study of Violence and Reconciliation. https://www.csvr.org.za/wp-content/uploads/2016/06/Kenyan-Case-Andrew-Songa.pdf

Truth, Justice and Reconciliation Commission Act. 2008. http://atjhub.csvr.org.za/wp-content/uploads/2021/08/Truth-Justice-and-Reconciliation-Bill-of-2008.pd

Truth, Justice and Reconciliation Commission (TJRC). 2013a. Final Report – TJRC Report Volume 1. TJRC. https://digitalcommons.law.seattleu.edu/tjrc-core/7/Truth, Justice and Reconciliation Commission (TJRC). 2013b. Final Report – TJRC Report Volume 2A. TJRC. https://digitalcommons.law.seattleu.edu/tjrc-core/7/

Truth, Justice and Reconciliation Commission (TJRC). 2013c. Final Report – TJRC Report Volume 2C. TJRC. https://digitalcommons.law.seattleu.edu/tjrc-core/7/

Truth, Justice and Reconciliation Commission (TJRC). 2013d. Final Report – TJRC Report Volume 4. TJRC. https://digitalcommons.law.seattleu.edu/tjrc-core/7/