Kenya TJRC Summary Report Aug 2013

Table of contents
Abbreviations………………………………................………………………………................………………...i
Foreword………………………………................………………………………................………………………ii
Acknowledgements………………………………................………………………………........................iii
Volume I ………………………………................………………………………................…………………….…1
Background of the Commission..............………………………………................…………………….…1
Interpretation of Mandate..............………………………………................……………………….........1
Methodology and process..............………………………………................……………………….........2
Challenges in execution of mandate ..............………………………………................……………….3
Volume IIA..............………………………………................………………………..............…………………5
Historical Context: General overview through regimes..............……………………………….....5
History of security agencies ..............………………………………................………………………......6
Shifta War..............………………………………................………………………..............………………….8
Unlawful killings and enforced disappearances ..............………………………………................9
Unlawful detention, Torture and Ill-treatment ..............………………………………..............11
Sexual Violence..............………………………………................………………………........................13
Volume IIB..............………………………………................………………………..............……………….14
Economic Marginalization and violation of socio-economic rights ..............……………….14
Land and Conflict..............………………...............………………...............………………...............16
Economic crimes and Grand Corruption..............………………...............………………...........18
Volume IIC..............………………...............………………...............………………...............…………20
Gender and Gross Violation of Human Rights: Focus on Women..............………………....20
Children and Gross Violation of Human Rights..............………………...............……………….21
Minority Groups, Indigenous People and Gross Violation of Human Rights ..............….23
Volume III ..............………………...............………………...............………………...............…………27

Ethnic Tension………………………………................………………………………................................27
Ethnic Tension , land and politics: Case Study of Mt. Elgon Conflict...............................28
Healing and Reconciliation ………………………………................………………………………...........30
Volume IV..............………………...............………………...............………………...............………….33
Implementation and monitoring mechanism………………………………................….………… 33
Reparations framework………………………………................……………………………….................34
Annex: Recommendation and Implementation Matrix………………………………..................38

Abbreviations
ASK Agricultural Society of Kenya
Barasas A social gathering held to share knowledge, discussion and
experiences
CBO's Community Based Organizations
CSo's Civil Society Organizations
EACC Ethics and Anti-Corruption Commission
EDs Enforced disappearances (EDs)
EJKs Extra-judicial killings
FERA February 18th Revolution Arm
FGM Female genital mutilation
GEMA Gikuyu Embu Meru Association
GSU General Service Unit
ILO International Labour Organization
KANU Kenya Africa National Union
KPU Kenya People's Union
KTJN Kenya Transitional Justice Network
MIP Minority and Indigenous Population
MRC Mombasa Republican Council
NCIC National Cohesion and Integration Commission
ODM Orange Democratic Movement
PEV Post election violence
SLDF Sabaot Land Defence Force
SOP Standard Operating Procedures
TJRC Truth, Justice and Reconciliation Commission
TJR Truth Justice and Reconciliation (TJR)
UNWGEID United Nations Working Group on Enforced Disappearances
i
Foreword
The objective of producing this summary is to enable Kenyans to have access to a user friendly,
easy to read version of the report, and to generate public discussions on the main aspects
raised. It is not a critical analysis of the report, but a summary of the main findings and
recommendations for each chapter of the report, along with the recommendations.
The information presented in this summary was solely extracted from the TJRC report which
comprises of 2,210 pages, divided into four volumes: Volume 1 describes the mandate of the
TJRC, the methodology of its work and the challenges it faced; Volume 2 is divided into three
parts, IIA, IIB and IIC - Volume IIA presents information collected by the TJRC on violations of
bodily integrity rights, such as unlawful killings, torture, enforced disappearances and sexual
violence - Volume IIB focuses on violations of social and economic rights, as well as historical
injustices - Volume IIC concentrates on violations of the rights of special groups, such as women,
children and minorities; Volume 3 covers ethnic tensions and reconciliation; and lastly, Volume
4 presents the findings and recommendations of the TJRC, as well as the structure and mandate
of the proposed implementation committee—and does not include, neither does it seek to
incorporate other sources.
The establishment of a committee to implement the recommendations of the TJRC report has
been proposed as the way forward, with the objective of working with relevant stakeholders to
facilitate the implementation process, including, administering the proposed reparations.
KTJN hopes that civil society organizations, government bodies, community-based

organizations, faith-based organizations, and other parties who are actively engaging in Kenya's
transitional justice process will find this summary useful.
ii
Acknowledgements
The Kenya Transitional Justice Network (KTJN) would like to present this summary of the report
of the Truth Justice and Reconciliation Commission (TJRC).
This is a summary of the findings and recommendations contained in the report of the TJRC
released and handed over to President Uhuru Kenyatta on 21st May 2013.
KTJN acknowledges and appreciates the commitment of its members and partners who were
instrumental in summarizing the various chapters of the report into easy-to-read brief
summaries. They include: the Kenyan Section of the International Commission of Jurists (ICJ
Kenya), Kenya Human Rights Commission (KHRC), the International Centre for Transitional
Justice (ICTJ), GIZ, the Kenya National Commission on Human Rights, Constitution & Reform
Education Consortium (CRECO), Coalition on Violence Against Women (COVAW), Federation of
Women Lawyers (FIDA), Accord International, Freedom House and the International Center for
Policy and Conflict (ICPC).
KTJN also wishes to recognize the efforts of committed programme teams and partners: Andrew
Songa, Sarah Muthiga, Chris Gitari, Sandra Milena, Zoe Dugal, Sarah Gale, Ruth Nekura, Njoroge
Njenga, Njonjo Mue, Davis Malombe, Davinder Lamba, Bakari Moses, Julian Muturia, Juliet
Kamau and Earl Sullivan for their work on the summaries of the various chapters of the report
and participation at the technical workshop to analyze the report of the TJRC on 16th – 19th June
2013. We also thank Lucy Wariara and Naomi Maina for their assistance in the compilation and
editing of these summaries into this concise document.
We are grateful to our funding partners, GIZ, for their continued generosity and financial
support that guaranteed the successful production of this publication.
About Kenya Transitional Justice Network

1. Vision
National accountability, equity and unity
2. Mission
To collaborate towards the realization of transitional justice programmes (components) in Kenya comprising Truth-seeking, Crimina
Justice, Constitutional Change and Institutional reform.
3. KTJN Membership
a) KTJN is the Transitional Justice Network for Kenya.
b) Individuals and groups [general, working and thematic] form the membership of the KTJN.
c) The working group forms the executive committee steering or coordinating the network to realize the above vision, mission and the
programmes. This committee is made up of the following members: KHRC, ICJ-Kenya, ICPC, KNCHR, FIDA-Kenya, COVAW, CREAW,
KLA, ICTJ, Mazingira Institute, UAF-Africa, CMD CRECO, 4Cs, AfriCOG and CEDMAC.
d) The criterion for general membership is pegged on subscription to the mission and vision of the KTJN.
e) To join KTJN please contacts any of the organizations named above or those with their contacts below
KENYA HUMAN RIGHTS COMMISSION THE KENYAN SECTION OF THE INTERNATIONAL

Valley Arcade,Gitanga Road, COMMISSION OF JURISTS
P.O.Box 41079 – 00100, Nairobi, Kenya. Vihiga Road, Off Othaya Road, Kileleshwa,
Tel: +254–020–3874998/9, 3005673, P.O.Box 59743 –00200, Nairobi, Kenya.
Cell: 0733 629 034; 0722 264 497, Tel: +254–020–3875980/1, 6750996,
Fax: +254–020–38744997. Cell: 0720491549; 0733 491 549;
E-Mail: [email protected], Fax: + 254–020–3875982,
Website: www.khrc.or.ke. Email: info@icj–kenya.org,
Website: www.icj–kenya.org.
iii
Summary - Truth, Justice and Reconciliation Commission Report
Volume I
Background of the Commission
The Truth, Justice and Reconciliation Commission (TJRC) was created by Parliament through the
Truth Justice and Reconciliation (TJR) Act 2008. Its objective was to promote peace, justice,
national unity, healing and reconciliation, among the people of Kenya by:
investigating and establishing a record of human rights violations by the State, since
Kenya's independence in 1963 to 2008;
explaining the causes of the violations; and
recommending prosecution of perpetrators and reparations for victims.
The TJRC collected 42,465 statements and 1,828 memoranda from Kenyans, and conducted
public hearings all over the country. During the hearings, victims, witnesses and alleged
perpetrators gave their stories to the TJRC. Additionally, the TJRC conducted research and
investigations. All the information was analyzed and used to compile the final report.
In May 2013, the TJRC published its final report. The report comprises of 2,210 pages, which are
divided into four volumes: Volume 1 describes the mandate of the TJRC, the methodology of its
work and the challenges it faced; Volume 2 is divided into three parts, IIA, IIB and IIC - Volume IIA
presents information collected by the TJRC on violations of bodily integrity rights, such as
unlawful killings, torture, enforced disappearances and sexual violence - Volume IIB focuses on
violations of social and economic rights, as well as historical injustices - Volume IIC concentrates
on violations of the rights of special groups, such as women, children and minorities; Volume 3
covers ethnic tensions and reconciliation; and lastly, Volume 4 presents the findings and
recommendations of the TJRC, as well as the structure and mandate of the proposed
implementation committee.
Interpretation of Mandate
The TJRC focused on investigating and establishing a record of 'gross human rights violations' in
Kenya, from independence in 1963 to 2008. According to the TJR Act 'gross human rights
violations' include the following:
violations of fundamental human rights, including, but not limited to acts of torture,
killing, abduction and severe ill-treatment of any person;
imprisonment or other severe deprivation of physical property;
rape or any other form of sexual violence;
enforced disappearance of persons;
persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious or gender, or other grounds universally recognized as
impermissible under international law;
any attempt, conspiracy, incitement, instigation, command, procurement to commit the
mentioned acts, carried out between 12th December 1963 and 28th February 2008; and
crimes against humanity.
1
In addition to the human rights violations described in the TJR Act, the TJRC also focused on
violations of socio-economic rights:
Socio-economic impact of violations that targeted individual's bodily integrity or their
civil and political rights. The TJRC established that most security operations in the
country where killings, torture and sexual crimes were committed, were also
characterized by the burning of houses, theft or killing of cattle, looting of property and
destruction of crops. The impact of these violations was particularly borne by the most
vulnerable in the society, namely women, children, persons with disabilities and the
elderly.
Socio-economic marginalisation of communities.
Economic crimes and grand corruption.
Methodology and process
The TJRC structured its work under four phases:

Civic education and outreach: The Civic Education and Outreach Department
conducted a number of activities, including training stakeholders, hosting workshops
and meetings, and participation in barazas and the Agricultural Society of Kenya (ASK)
shows, in an effort to reach as many Kenyans as possible, from all sectors of the society.
Statement-taking: The TJRC recruited 304 Statement Takers—113 male and 191
female. The nation-wide statement taking exercise was officially launched on 9th
September 2010, and lasted for five months. Owing to this, some individuals were
either unwilling or unable to record statements during the formal statement taking
exercise periods, the TJRC continually recorded and received statements and
memoranda at its offices, and during individual and thematic hearings.
Table 1: Statements taken- distribution by region and gender

Region Male Female Unknown Total
Central 1778 1574 6 3358
Coast 2455 1079 13 3547
Eastern 3467 1775 7 5249
Nairobi 832 947 2 1781
North 2883 1307 2 4192
Eastern
Nyanza 2602 1828 7 4437
Rift Valley 7211 4698 23 11932
Western 3934 2890 8 6832
Not Given 649 405 83 1137
Grand Total 25811 16503 151 42465
2
Memoranda and other materials: The TJRC collected 1,828 memoranda submitted by
representatives of affected communities, groups or individuals, which provided longer
narrations of the history, context and causes of violations.
The TJRC also used other materials such as the national archives, government registries,
academic papers and reports of relevant organizations and institutions. The Research
Department also organized thematic workshops with relevant experts and stakeholders,
to explore various research themes.
Hearings: The TJRC started its hearings in Garissa, in mid-April 2011, and concluded with
Nairobi at the beginning of April 2012. It conducted three kinds of hearings.
o Individual hearings, which focused on the experiences of individuals in relation to
gross violations of human rights. Testimonies were heard from individuals whose
rights had been violated, as well as those who either had knowledge of—or allegedly
participated in acts that resulted in violations.
o Women's hearings were exclusively conducted and attended by women, with the
objective of creating a safe space for them to freely speak about violations which
exclusively affected them.
o Thematic hearings focused on specific violations, events, or groups of victims. The
TJRC held a total of 14 thematic hearings which focused on the following subjects:
access to justice; economic marginalisation and minorities; land; armed militia
groups; prisons and detention centres; torture; ethnic tensions and violence; the
1982 attempted coup; security agencies, extra-judicial killings and massacres;
persons with disabilities; women; children; internally displaced persons; and
political assassinations.
Challenges in execution of mandate
The report discusses four main challenges:

o the controversy surrounding the credibility and suitability of the Chairperson;
o financial and other resource constraints;
o legal challenges; and,
o the lack of sufficient state and political will to support the work and implementation
of the objectives, for which the TJRC was established.
Other challenges generally stemmed from one or more of these four major challenges,
including the disengagement of key stakeholders (notably CSOs and donors) from the
processes of the TRJC.
Credibility and suitability of the Chairperson

Almost immediately after the inception of the TJRC, CSOs and a range of other actors,
raised concerns over the suitability and credibility of Ambassador Bethuel Kiplagat to
serve as the its Chairperson. The TJRC explains this challenge in detail, because of the
great impact it had on its operations, also states that it was the single challenge which
threatened its existence.
The controversy about Kiplagat's suitability as the Chairperson of the TJRC, and the legal
suits that ensued, adversely affected operations throughout its life span. The controversy
diverted and distracted the attention and energy of the TJRC from executing its core
mandate. Kiplagat's refusal to step aside led to the resignation of Kaari Betty Murungi as
the Vice-Chairperson, and later as a commissioner. 3
The Chairperson's refusal to step aside led to the loss of important stakeholders to the
work of the TJRC. Social media outlets were awash with calls for the disbandment of the
TJRC. Donor organisations equally refused to fund the TJRC, and those who had initially
committed to fund it, withdrew their offers. The general public, CSOs, FBOs, CBOs, the
media and other relevant stakeholders adopted a policy of 'non-cooperation' with the
TJRC.
Conflict of Interest issues were not just confined to Ambassador Kiplagat alone. There
were also allegations that commissioner Major General (Retired) Ahmed Farah had been
involved in security operations which led to the Wagalla Massacre.
The TJRC also immediately undertook investigations into these allegations, and
established that:
o the Navy, of which General Farah was part of, was not in involved in any way with the
Wagalla Massacre
o that General Farah was in fact out of the country before, during, and after the
Wagalla Massacre.
Legal challenges
Soon after its establishment, two legal actions were lodged in the High Court, both of which
sought the dissolution of the TJRC. The substance, outcomes and impact of the two cases are
discussed in this sub-section.
Augustine Njeru Kathangu and 9 Others v TJRC and Bethuel Kiplagat [High Court Misc App
No. 470 of 2009]
The Applicants in this case were members of a lobby group named Kenyans Against
Impunity, which was formed in the aftermath of the 2007/08 PEV. They were also victims
of violations that fell under the TJRC's scope of inquiry. They raised a constitutional
challenge on the composition and statutory mandate of the TJRC.
Moraa Gesicho v Attorney General and TJRC [High Court (Kisii) Petition No. 1 of 2010]
The petitioner in this case described herself as a victim of the 2007/08 PEV. She sought a
declaration from the High Court that the TJRC had no basis upon which to pursue justice
for victims of the PEV. She therefore prayed for the dissolution of the TJRC.
Lack of political will

1. Firstly, in spite of the express and mandatory provisions of the TJR Act, the President
failed to fill the position of commissioner Kaari Betty Murungi when it fell vacant in April
2010. This forced the TJRC to operate with eight commissioners, and later, when
Ambassador Kiplagat stepped aside, it remained with only seven commissioners.
2. Secondly, despite multiple requests, the state refused to hand over to the TJRC relevant
documents pertaining to its mandate, including the reports of previous commissions of
inquiry, that the TJRC was obligated to review and evaluate. Because of this consistent
lack of cooperation, the TJRC was forced to acquire for many relevant documents, including
the reports of previous commissions of inquiry, through unofficial and informal means.
3. Thirdly, the State failed to adequately support the TJRC's reconciliation work. By their
stature and position in society, political leaders, especially the President and the Prime
Minister, had key roles to play in steering the nation towards national unity and
reconciliation. However, their support for this particular work was ad hoc and
inconsistent.
4
Volume IIA
Historical Context: General overview through regimes
The historical and contextual analysis of the TJRC report is important because it helps to assess the
extent to which the TJRC has established an accurate, complete and historical record of violations
and abuses from the antecedents, circumstances, factors and contexts—pursuant to Sections
5(a)(ii) and 5(b)(ii) of the TJR Act, 2008.
It also guides in establishing the accuracy and patterns of the violations carried out across different
regimes, times and space. This is also referred to as systemic violations and crimes. To this regard,
the following are key findings of the TJRC report:
i. With respect to its scope in time and space, the TJRC strived to develop a very clear
understanding and dynamic interpretation of its mandate, with regard to the relevant issues
and periods, both pre and post-independence. This is well captured in the following
observations: “After clarifications, those who harboured fears came to understand that the
envisaged commission could inquire into the colonial period. No changes were therefore
made to the clauses in the TJR Bill, relating to the mandate of the TJRC. Therefore, in the TJR
Act, the first part of the relevant sections mandates the TJRC to investigate violations of
human rights that occurred in Kenya between 12th December 1963 and 28th February
2008. The second part mandates it to look into 'background, circumstances, factors and
context”. According to the TJRC, this helped them to contextualize violations and atrocities
carried out beyond 12th December 1963, and to discover the genesis of the problem.
ii. Additionally, the TJRC seems to have developed an understanding that it could, in certain
circumstances, inquire on events and extend its mandate beyond 28th February 2008, if a
violation under inquiry was of a continuing nature. In this regard, the report indicates that
the TJRC informed concerned individuals filling out the Statement Form to indicate whether
the violation they were recording was of a continuing nature. In relation to this, the report
affirms that the TJRC was expressly mandated to 'investigate on any other matter that it
considered to be in need of investigations, in order to promote and achieve national
reconciliation. This then gave it more leeway, in terms of time and space, to implement its
mandate.
iii. In the context of Volume 1 (the Executive Summary), the TJRC provided a good synopsis of
its historical and contextual perspectives on emerging issues, within what it calls the
“primary findings” and “thematic overviews”.
Under the “primary findings”, the TJRC summarizes the violations and abuses carried out between
1895 to 1963; 1963 to 1978; 1978 to 2002; and 2002 to 2008. These trends give a picture of what
happened between the colonial and Jomo Kenyatta, Daniel Moi and Mwai Kibaki regimes,
respectively.
This section profiles the findings with regard to thematic and regional-based violations, within the
historical dimensions, which tend to fluctuate between the colonial and post-colonial regimes.
Under the so called “thematic overviews” the report begins with the “political history—a general
overview” and then contextualizes gross violations and injustices carried out within the above-
mentioned political epochs. The reports indicates that “these epochs correspond to the four
political administrations that governed the country, prior to and the during the TJRC's mandate
period”. 5
I. While the report clearly blames the colonial government for the entrenching the retrogressive
systems, and for committing gross atrocities, it admonishes the Jomo Kenyatta, Daniel Moi and
Mwai Kibaki regimes, for maintaining the status quo. The following statements are critical to
note: “President Kenyatta made no substantial changes to the structure of the State”. “Under
President Moi, the status quo remained for a couple of years, before becoming notably
worse…” “…it was not long before autocratic tendencies and KANU-like practices began to
emerge in the Kibaki administration”.
ii. Key violations and atrocities committed from a historical perspective are noted. These entail
affronts by security agencies and aggressions experienced: in the context of the Shifta war,
massacres, political assassinations, detentions, torture and ill-treatment; within sexual
violence; land and conflict; economic marginalization and violation of socio-economic rights;
grand corruption and economic crimes; women and children rights violations; ethnic tensions,
and violations to minority and indigenous people from a historical perspective.
Finally, other volumes of the TJRC's report-II(A); II(B); III and IV, have investigated, documented and
profiled the findings and recommendations, with regard to different themes and issues, from both
historical and contemporary perspectives.
History of security agencies

Chapter summary and findings
The Kenya Police and Military forces have been at the center of the country's history of
violations of human rights. Both have either committed the violations themselves, or have
failed to protect Kenyan citizens. These violations of human rights include massacres, unlawful
killings, enforced disappearances, torture and ill-treatment, as well as rape and sexual violence.
The Police and Military forces have been the main perpetrators of these violations.
Throughout the colonial and independence history of Kenya, the Police and Military forces have
engaged in excessive violence against communities while addressing cases of banditry, and
when maintaining peace and order. These violations were commonly used during large-scale
security operations and states of emergency. For example, in response to the Mau Mau
insurgency, and during Operation Okoa Maisha in Mount Elgon, both cases were handled with
no regard to the guilty civilians, or the impact of violations against those who were innocent in
these communities. The two forces' interactions with local communities were characterized by
excessive violence and abuse of power, throughout the history of Kenya.
Lack of professionalism and efficiency in the Police force is rooted to the former British colonial
police administration, whose aim was to protect the interests and properties of the colonial
State, and a small elite, racial minority—and not to fight crime and establish the rule of law. This
lack of professionalism and efficiency persists to date. The policy of the colonial
administration, with regards to the Police and Military forces, was only to offer positions of
responsibility to Europeans or other foreigners. At independence, these forces were left
without experienced high ranking African officers, thus establishing the foundation of lack
of professionalism thereafter.
Some sections of the Police and Military forces created during the colonial period remained
in placed after independence, and are noted in other sections of the TJRC report, for
numerous human rights violations. These include the Special Branch, the General Service
Unit and the King's African Rifles.
6
Among the factors that encouraged the perpetuation of violations of human rights were:
- The failure of both Jomo Kenyatta's and Daniel Moi's regimes, after independence, to
dismantle the repressive State structures, and repeal the repressive laws and policies
of the colonial government. The Police unit was not properly converted into a force
which serves the population, instead, it continued to service a small and powerful elite
post-independence group of people, with methods characterized by excessive
violations of human rights.
- The cover-up of cases of violations of human rights by the State, especially those
committed by security agencies. The State has never shown commitment to
investigate and prosecute State agents for violations of human rights.
Recommendations
Recommendation Responsibility for Timeframe

implementation
There is need for rapid, effective and Inspector General of Not
transparent implementation of the proposed Police and Police specified
police reforms, including the introduction of Service Commission
new operating procedures on the use of
force, based on international standards.
Force Standing Order 51 which allows the
use of lethal force to protect property should
be repealed.
The police force should formulate a new Not specified – Not
code of conduct and ethics, in line with presumably the specified
constitutional values, including disciplinary Inspector General of
and accountability measures. Police and Police
Service Commission
The police desks at police stations should be Not specified – Not
well-funded and serviced by officers who presumably the specified
have been trained to deal with children. Inspector General of
Police
Every police station in Kenya should reflect a Not specified – Not
good representation of ethnic diversity and presumably the Police specified
gender balance. Service Commission
The police officers who were involved in Director of Public 18 months
violations of human rights should be Prosecution
prosecuted, especially those who are
incremented in torture cases. The list of
persons recommended for additional
investigation and prosecution is contained in
Volume IV of the report.
The Police and Military forces should President, Inspector 6 months
apologize for gross violations of human General of Police and
rights, especially extra-judicial killings, Chief of Defense
arbitrary detention, torture and sexual Forces
violence.
7
Shifta War

The Shifta War which took place from 1964 to 1967, between the newly independent Kenyan State
and the Somali Separatist Movement, presents a period of widespread violations of human rights.
The Military force committed mass killings, torture, sexual violence and rape against civilians. The
police force, especially the General Service Unit, also committed violations of human rights. It is
estimated that between 2,000 and 7,000 people were killed during the War.
The Somali Separatist Movement and the Northern Frontier District Liberation Military also
committed violations of human rights against civilians, but on a much smaller scale, compared to
the Military force.
The Military force is responsible for large-scale confiscation and killings of cattle, especially by
poisoning of water sources, which killed both cattle and civilians. The owners of the cattle were
never compensated for the loss, leaving many destitute. The levels of loss reported to the TJRC
range from 70 percent to 90 percent of cattle.
The government created restricted villages, where communities were forced to live, and were
forbidden to leave. These villages were more like detention camps. The living conditions were very
bad, with poor sanitation, disease outbreaks, and poor security. These resulted in numerous rape
cases and other violations of human rights. Some children were forcibly taken from their families
and relocated in these villages.
The government covered up the violations committed by the Police and Military forces, as well as
the civilian administration. It passed the Indemnity Act to protect all government officials from
prosecution, for violations committed during the war. To date, the Indemnity Act is still a law in
Kenya.
The TJRC identifies Brigadier Joseph Ndolo and Brigadier Jackson Mulinge as those who were
responsible for the atrocities, because of their roles as commanders in the Military force during the
Shifta War period. The TJRC received reports of many mass graves around Northern Kenya, which
date back to the Shifta War period.
The Shifta War ended when the Kenya and Somalia governments signed an agreement. In this
agreement, the government of Somalia promised to stop supporting the Kenyan Somali Separatist
Movement.
The Shifta War had a devastating effect on minority groups in Northern Kenya, and on the region as
a whole. Currently, Northern Kenya is a neglected region with poor living conditions, lack of
government services and lack of security. Discrimination against the Somali community still
persists, because of the earlier separatists ambitions expressed during the Shifta War.
8
Recommendations
Rcommendation Responsibility for Timeframe
implementation
The government should repeal the Indemnity Act Attorney General and 9 months
within nine months of the publication of the TJRC’s Parliament
report.
Further investigations of persons adversely Director of Public Not
mentioned in regards to violations of human rights, Prosecution specified –
committed during the Shifta Wars should be presumably
conducted. The list of persons recommended for 18 months
additional investigation and prosecution is
contained in Volume IV of the report.
The government should publish the agreement Ministry of Foreign 9 months
which was signed by Kenya and Somalia in 1967 to Affairs & Office of
end the Shifta War. the President
The President of Kenya, as Commander in Chief of President 6 months
the Armed Forces, should publicly recognize and
apologize for the violations committed during the
Shifta War.
A memorial to commemorate the victims of the Ministry responsible 24 months
Shifta War should be put up. for National Heritage
& National Museum
Unlawful killings and enforced disappearances
The TJRC report analyzed extra-judicial killings (EJKs) and enforced disappearances (EDs) as
gross violations of human rights to the TJR Act. EJK's are killings carried out by the State.
Some examples are political assassinations, executions without due process of law and
deaths resulting from torture, ill treatment, detention, ED's, or excessive use of force. The
State's actions in complacency with these actions are contrary to its constitutional
requirement, to protect individuals within its jurisdiction from unlawful killings.
The TJRC recognized extra-judicial killings and enforced disappearances as two distinct legal
categories, while also recognizing the close relationship between the two human rights
violations.
Kenya is a signatory to the International Convention for the Protection of All Persons from
Enforced Disappearance, which was entered into force on 23rd December 2010. Because
Kenya has signed this treaty, the State is obligated not to act contrary to the object and
purpose of the Convention. It is noted that the State does not make regular reports to the
United Nations Working Group on Enforced Disappearances (UNWGEID).
One of the challenges encountered by the TJRC was lack of access to accurate records held
by the Police, which contained details of the number of people who had reportedly been
killed by State agents, as well as records of ED's. This led to TJRC's heavy reliance on
secondary information, mostly captured from civil society reports and the media.
The legal system in place in Kenya is not sufficient to prevent EJKs and EDs. This failure is
mainly due to lack of specificity in laws defining EJKs and EDs, which in turn led to the
inability of perpetrators from being prosecuted. This vagueness resulted in impunity of
State perpetrators of EJKs and EDs. 9
Some of the cited cases in post-independence Kenya were massacres, such as the Wagalla
massacre, military operations, the ethnic clashes of 1992, 1997, 2007, and the EJKs of youths who
were alleged to belong to Mungiki.
In most cases, such as during tribal clashes and military operations, security forces—Police force,
Administration Police and the Military were either complicit to the acts, or perpetrators of these
acts. For example, the 2007 post-election violence was characterized by the use of excessive force
and EJKs by the Police force.
The State has also engaged in efforts to conceal EJKs and EDs. These efforts include deliberate
failure to investigate and sham investigations, and frustrating genuine investigations. The TJRC
reports that there were many cases of EJKs and EDs which, the State completely ignored, and did
not undertake any effort to investigate.
Criminal justice institutions in Kenya have provided little—if any remedy to victims of EJKs and EDs.
Shoddy investigations were carried out, rendering it difficult to link evidence to the alleged
criminals. Further, the low quality of evidence often prolonged the trials. This led to the acquittal of
most of the accused persons, due to lack of evidence, while those in remand and prison awaiting
trials, often died in the process.
Recommendations
Recommendation Responsible Timeline
The President and respective heads of the Police and The President and 6 months
Military forces, should within six months of issuance of this Police and Military
Report, offer a public and unconditional apology for extra- forces
judicial killings committed during the mandate period.
Reforms in the Police force should be fast-tracked, Inspector General of -
including the introduction of new Standard Operating Policeand Police
Procedures (SOP). Service Commission
Within two years of issuance of the report, the government Ministry of Foreign 2 years
should ratify the International Convention for the Protection Affairs
of All Persons from Enforced Disappearance.
Within 36 months of the issuance of this Report, the Ministry responsible for 36 months
government should set up a fully equipped national internal
modern forensic laboratory, followed by every county security and other
thereafter. relevant ministries/
institutions.
Abolish the death penalty, and commute all death Attorney General and 24 months
sentences to life imprisonment or other appropriate Parliament
sentences. The Commission notes that while Kenya is not
an abolitionist state, it has not exercised the death penalty
for close to three decades.
Compensate families of victims of extra-judicial killings, in The President -
accordance with the TJRC’s Reparation Framework.
Compensate victims; the British government should also The President and -
offer a public and unconditional apology to victims and British Prime Minister
Kenyans at large.
Reparation for victims and survivors Implementation 36 months
mechanism
10
Unlawful detention, Torture and Ill-treatment

This chapter focuses on violations committed directly by the State and other similar
violations committed by non-State actors. The chapter provides a composite account of the
dynamics and factors that nurtured an environment under which these violations and
injustices thrived.
Between 1963 and 1978, the government of President Jomo Kenyatta was responsible for
numerous gross violations of human rights. These violations include:
o killings, torture, and collective punishment
o denial of basic needs (food, water and health care); and
o arbitrary detention of political opponents and activists.
Between 1978 and 2002, the government of President Daniel Moi was responsible for
numerous gross violations of human rights. These violations included unlawful detentions,
as well as systematic and widespread torture and ill-treatment of political opponents and
human rights activists, for example, during the Mwakenya crackdown and after the 1982
attempted coup. This also included torture of families of the suspects.
Between 2002 and 2008, the government of President Mwai Kibaki was responsible for
numerous gross violations of human rights, including unlawful detentions.
Security operations in Northern Kenya were accompanied by systematic and widespread
torture, rape and sexual violence against girls and women. Additionally, the colonial and
post-colonial States abused the provisions of state-of-emergency, to use unlawful detention
and torture.
State security agencies, particularly Police and Military forces, have been the main
perpetrators of bodily integrity violations of human rights in Kenya, including massacres,
enforced disappearances, torture and ill-treatment, and sexual violence. The Police and
Military forces used unlawful detention and torture during security operations in Northern
Kenya (North Eastern, Upper Eastern and North Rift), in Likoni and Mount Elgon.
The Special Branch of the Police force systematically used torture against detainees in Nyayo
House, Nyati House, police stations and prisons. Torture practices included detention in
water-logged cells, spraying detainees with hot and cold water, denial of food, water and
medical attention, beatings, humiliation and the use of insects to bite detainees.
Nyayo House was constructed by the government with the intention of using its basement
as torture cells.
The Judiciary was frequently complicit with the commission of violations of human rights,
by denying suspects due process. For example, the use of prolonged detention before trial,
as well as through unfair trials. Violations due to prolonged pre-trial detention continue to
date.
Victims of torture and their families still suffer the consequences of the violations they
experienced. Many have had their health, self-esteem and livelihoods destroyed.
11
Recommendations
Apologise for gross violations of human rights committed by predecessor State -
agencies between 12th December 1963 and 28th February 2008, especially security
acts of extra-judicial killings, arbitrary and prolonged detention, torture agencies
and sexual violence.
Enter into negotiations with the British government with a view of seeking Kenyan 12 months
to compensate victims of atrocities and injustices, committed during the Government
colonial period, by agents of the colonial administration.
Create a National Human Rights Day on 10 December, to coincide with Parliament 6 months
the international Human Rights Day, which will be used to promote
respect for human rights in Kenya.
Fast-track the enactment of human rights related laws as envisaged by the - -
Constitution of Kenya, including: freedom of the media; fair hearing; and
rights of persons held in custody or detained.
Make a declaration in terms of article 34(6) of the Protocol to the - -
African Charter on Human and Peoples’ Rights on the Establishment of
the African Court on Human and Peoples’ Rights, thus allowing
individual victims of human rights violations, who have exhausted local
remedies to directly access the African Court.
Fast-track the expansion of the national legal aid scheme to cover the Ministry of Not
entire country. Justice specified
Enact a legislation prohibiting all forms of torture and cruelty, inhuman or Government 12 months
degrading treatment or punishment committed both by State and non-
State actors.
Establish through legislation, of the Office of the Independent Inspector of - -
Prisons and All Places of Detention.
Rapid, effective and transparent implementation of the proposed police - -
reforms, including the introduction of new standard operating procedures
on the use of force, based on international standards.
Repeal of Force Standing Order 51, which allows the use of lethal force to - -
protect property.
Prosecute police officers and other State agents who were involved in - -
torture and ill-treatment of individuals during the mandate period. In
1
particular, the prosecution of the following 18 individuals . Investigations
of identified individuals involved in the torture and ill-treatment of,
amongst others, Mwakenya and FERA suspects.
A public apology to all victims of torture and unlawful detention and President -
acknowledgement of the role of the State in the design and use of
Nyayo House torture cells.
Conversion of Nyayo House into a memorial site after consultations with - -

victims of torture.
Compensation for victims of unlawful detention, torture and ill- - -
treatment, as per the framework described in the Chapter on
Reparation Framework.
12
Sexual Violence
This chapter focuses on Sexual and Gender Based Violence violations against women, men,
girls, and children. The TJRC's mandate comes from section 5(c) of the TJR Act, which
mandated the TJRC to investigate gross human rights violations, which include rape and any
other form of sexual violence.
Over 1,100 statements were received from adults, regarding sexual violations. 103 of these
were given by men. Combined, the statements and memoranda represented a victim count
of 2,646 women and 346 men.
The TJRC held public hearings where 778 witnesses (213 women and 656 men) gave
testimonies regarding sexual violations. Out of 778 cases that were heard, 26 reported that
sexual violence violations were committed to them. Of these, 21 were from women while 5
came from men.
Out of 100 total cases heard in camera, 19 related to sexual violence. Two of the sexual
violence cases heard in camera were from men, while the other 17 came from women.
Separate thematic hearings were also organized exclusively for women. Over 1,200 women
participated in these thematic hearings—women-only hearings.
The Report covers sexual violations throughout the TJRC mandate period. This included
instances, from the colonial period until 2008, during cattle raids, security operations and
everyday life.
The TJRC received reports of many types of sexual violations. For example, some victims
reported mass rapes, defined as the rape of many women in a community at the same time;
gang rape, defined as the rape of women by more than two men at the same time; sodomy;
mutilation of male and female genitals; defilement; sexual torture; sexual slavery; and
penetration of women's sexual organs with harmful objects.
Recommendations
Acknowledge and offer a public and unconditional apology for acts President Three Months(within
of violence committed by State security agencies, during security the issuance of this
operations and other periods of generalized violence, such as the Report)
2007/2008 PEV.
Establish gender based violence recovery centres in every county. Kenyan 12 months
Government
Set up the office of the Special Rapporteur on Sexual Violence, as Government 12 Months
recommended by the Waki Report.
Formulate a new Code of Conduct and Ethics for the Police force, National Police Not specified
in line with Constitutional values and principles. Service
Commission
Prosecute Nganda Nyenze who allegedly planned, supervised or was DPP/Governme Not specified
otherwise involved in the Kavamba Operation, where women were nt of Kenya
raped and/or sexually violated.
Apologize for sexual violence committed against women in Samburu British Not specified
and Laikipia by British soldiers. Government
Enter into negotiations with the British Government with a view of Government of Not specified
seeking to compensate victims of sexual violence committed by Kenya
British soldiers in Samburu and Laikipia.
Provision of compensation of victims and survivors of sexual
violence as per the Reparation Framework proposed by the TJRC.
In the Report the term “cases” is used while apparently referring to the aforementioned “witnesses.” TJRC
Report Volume IIA, Chapter 6, Page 713. 13
Volume IIB
Economic Marginalization and violation of socio-economic rights
The chapter on Economic Marginalisation and Violation of Socio-Economic Rights finds its
statutory support in the Truth Justice and Reconciliation Act (TJR), which adopted a modern
approach to analyzing the violation of human rights, whereby the differences between bodily
integrity violations and socio-economic rights are not distinguished. While the TJR provides the
overall mandate for the commission section 6(p) of the TJR, it is most explicit regarding this
chapter and requires the TJRC to “inquire into and establish the reality of otherwise perceived
economic marginalization of communities, and make recommendations on how to address the
marginalization.”
Marginalisation: Though there were perceptions of marginilisation in all provinces, the TJRC
specifically focused on five: North Eastern, Nyanza, North Rift, Coast and Western. While the
indicators of marginilisation used by the TJRC (physical infrastructure, employment [especially
in the public sector], education, health, housing, access to land, water, sanitation and food
security) were used throughout, the manifestation of these differed by province. Though many
provinces suffered, such as Nyanza, for being “politically dissident” there were also a range of
other unique situations, resulting in marginilisation. For some provinces with lower natural
resources, such as North Eastern Province, this took the form of a lack of adequate government
support, while other provinces, like the Western Province, with better access to natural
resources, often suffered active government mismanagement or were left out of development
schemes, due to the perception that they were independently sustainable. Other provinces
such as the North Rift Valley have suffered due to lack of adequate security, which is quite
different then the Coast Province's major issue of landlessness resulting from historical
dispossession schemes.
TJRCs key operational definitions:
o Marginalization: Process that denies opportunities and outcomes to those “living on the
margin,” while enhancing the opportunities and outcomes for those who are “at the
center.”
o Economic marginalization: situation produced by the process through which groups are
discriminated directly or indirectly, in the distribution of social goods and services.
o Discrimination: any distinction, exclusion, restriction or preference based on any ground
such as race, colour, descent, or national or ethnic origin, which has the purpose or effect
of nullifying and/or impairing the recognition, enjoyment or exercise, on equal footing of
human rights and fundamental freedoms in political, economic, social, cultural or any
other field of public life.
o Violations were measured by practices which had either a discriminatory effect or were
constructed with a discriminatory intent. Discriminatory intent was analyzed by looking
at the direct impact of a practice, commonly seen though laws or policies. Discriminatory
effect may be seen by indirect impacts, such as the effect the removal of a group from
land would have on that society or culture. Further, the TJRC established that
economically marginalized groups tend to be socially marginalized as well. This process
has also been referred to as “social exclusion”, whereby certain groups are systematically
14 disadvantaged, because they are discriminated against.
TJRC's Approach to Examining Violations:The role of the State, in respect to

marginalisation, was analyzed by the TJRC to determine if it either increased or decreased
the inequality in a given region. This level of inequality was then measured horizontally
(between groups and regions), rather than vertically (income difference within social
groups).
Context of Economic Marginalisation: The TJRC established that the historical, socio-
economic and political context in which marginalisation developed was affected by many
factors. Six main factors, affecting the historical and structural inequality in Kenya, were
identified and examined in detail. These factors were Kenya's colonial legacy; ethnicity;
centralized State and personalization of power; client-patron relations and corruption; land
and economic marginalisation; and the historical irredentist and/or secessionist struggles
and State sovereignty.
State Involvement: The TJRC established that the State was responsible, in many cases, for
both direct and indirect marginalisation of certain regions, communities and groups. The
Sessional Paper No. 10, premised on African Socialism, fostered economic marginalisation
through a number of policies, including the elimination of communal land titles, a willing-
seller/willing-buyer based resettlement programme, a failure to rectify past injustices, and
regional investment strategies based on high/low potential regions.
Political Power, Ethnicity and Perpetuated marginalisation: Ethnicity was instrumentalized
through what the TJRC called the “evil triumvirate” of patronage, corruption and tribalism.
The TJRC found that there was a clear link between political power and benefits to the
community to which those in power belonged, quickly making politics and economic
inclusion a zero-sum game “win and be rewarded, lose and be marginalized”. This
manipulation for political and economic gain limited the spread of economic
empowerment. For example, the GEMA communities were supported by the Jomo
Kenyatta regime, while the Kalenjin's were supported by the Daniel Moi regime.
State Responses: The State responded to claims of marginalisation by often working against
those who made any claims which were perceived to weaken the power held by the State or
any infringement on the incumbent leader's position. When it was not possible to
accomplish the desired outcomes by a more authoritarian regime, the State would often
co-opt key members of marginalized communities (tokenism). This co-option rarely
benefited the communities from which the member was selected. The TJRC went on to
note that the development of the State's responses to claims of marginalisation saying that
Kibaki started to align himself with a more integrated government with greater diversity,
but this was later disregarded. The report discusses the new hope enshrined in the Bill of
Rights, is the devolution process and land reform.
15
Recommendations
Recommendation Responsibility for Timeline
implementation
Formulate, adopt and implement a policy that deliberately targets the Government 12 months
socio-economic development of historically marginalized regions.
Include strategic development plans and budgetary allocations,
·
aimed at the economic and social development of marginalized
communities.
The policy must recognize that these reparative actions are over
·
and above the provisions of Article 204 of the Constitution (2010) in
utilization of the Equalization Fund.
Build an efficient road network which links marginalized areas with
·
the rest of Kenya. Build boreholes and water-catchment systems,
adequately stocked and well-staffed hospitals within the reach of all
communities, schools with adequate facilities, courts of law, and
ensure that all government services and public facilities are made
available.
Enact a policy which gives preference to marginalized regions in
·
sharing of national revenues, as envisaged under Article 202 of the
Constitution (2010), to ensure that the development projects are
realized and the policy is implemented.
Provide collective reparation to communities in marginalized regions. Implementation 36 Months
mechanism and
relevant State
ministries and
institutions
Land and Conflict

This chapter offers a detailed explanation of historical land injustices in Kenya, and is divided into two
phases: the colonial era and post-independence era.
Colonial era
The colonial administration used irregular and/or illegal methods to obtain land from local
communities such as the establishment of native reserves; forced evictions of the Talai, Pokot,
Turkana, and Sabaot communities, land alienation by multinational corporations and coercive
measures such as forced African labour, forced taxation and forced military service. These colonial
policies, laws and practices had both immediate and long-term effects on African communities,
including permanent displacement. The colonial system created ethno-specific boundaries, which
gave the impression that land rights within particular boundaries could only be enjoyed by certain
communities, in certain areas. These ethnic ties to land continues to affect Kenya to date.
Post-independence era
Officials of the newly-formed independent government in Kenya turned the foreign-funded
settlement schemes into cartels for their own benefit, and bought land in the Rift Valley, among other
parts of the white highlands. Through this process, government officials swindled communities that
were supposed to benefit from the settlement schemes, after being displaced by the British.
Three main categories of land emerged—government (including local authority) land, trust
land/community land and private land. However, the laws on land were not respected, and this
resulted in illegal and/or irregular allocation of land, such as Karura and Ngong Forest, amongst others.
State officials such as the provincial administration continued historical injustices related to land,
16
including forceful evictions of individuals and communities, and land grabbing for personal gain.
The TJRC found that:
There is a close link between land injustices and ethnic violence in Kenya.
Land related injustices took many forms such as illegal takeover of individual and
community land by public and private institutions; illegally hiving off public land and trust
lands; preferring members of a specific ethnic group to benefit from settlement schemes,
at the expense of others who were more deserving; forcefully settling a community outside
its homeland; forceful eviction; and land grabbing by government officials.
Land injustices started during the colonization of the Coast by Arabs and were followed by
the British. All post-independence government regimes failed to honestly and adequately
address these injustices.
The failure of colonial and post-independent governments to address landlessness, has
caused individuals and communities to turn to violence.
Some take advantage of existing land-related injustices, when addressing other social
problems, such as political differences.
Land-related injustices have affected the whole country, but communities at the Coast,
especially the Mijikenda, Taita and Pokomo, have suffered the longest and most severe
injustices.
Land-related injustices at the Coast are one of the key reasons for under-development in
the area, and have caused the emergence of the Mombasa Republican Council (MRC).
The provincial administration has committed land-related injustices, including forced
evictions, and should participate in efforts to redress land related problems.
The current Constitution and its institutions provide an opportunity to fully address land-
related injustices, but only if there is political will to do so.
Recommendations
Recommendation Responsibility for implementation Timeframe
Survey, demarcation and registration of Ministry of Lands or other Not specified
public land. appropriate government authority
Adjudication and registration of land at the National Land Commission Not specified
Coast and other areas, where this has not
been done.
Investigate all alleged illegal or irregular National Land Commission Not specified
acquisition of land.
Design and implement measures to revoke Ministry of Land in conjunction with Not specified
illegally obtained tittles, and restore public the National Land Commission
easements.
Development and maintenance of a National Land Commission Not specified
computerized inventory of all land.
Formulate and implement strict guidelines, National Land Commission Not specified
in terms of the maximum acreage that an
individual or company can buy, in respect
of private land.
Reparations for historical land injustices. Implementation mechanism and 36 Months
National Land Commission
17
Economic crimes and Grand Corruption

Corruption is an endemic in Kenya. Throughout history, Kenya has had many large-scale
corruption scandals, and most individuals responsible have not been prosecuted. 5,646
people testified before the TJRC on corruption.
There is a direct link between corruption and gross violations of human rights. Kenyans
have been killed, tortured and subjected to other violations of human rights, because of
their efforts of combating corruption.
Corruption has a disproportionate impact on vulnerable groups such as the poor,
minorities and indigenous people, women, children, persons with disabilities, people
living with HIV/AIDS, refugees and internally displaced persons, and prisoners. Members
of these groups are less able to defend themselves. Corruption wastes resources for
development, infrastructure building, and public services, while discriminating against
those who cannot afford to pay bribes to the police and judges. Additionally, this practice
often leads to accidents, for example, when safety measures are compromised due to
bribing. Minority and indigenous people usually suffer from the effects of corruption
when they are displaced. For example, whenever there are corruptly approved
infrastructure developments.
The main challenges to fighting corruption in Kenya are as follows:
o Kenya does not have a national anti-corruption policy, and has not fully integrated
the United Nations Convention against Corruption into Kenyan law. Additionally,
there are no laws that allow the audit of the wealth of public servants. There are
currently no laws which criminalize corruption in the private sector.
o The functions and powers of the Ethics and Anti-Corruption Commission (EACC) are
not properly described in the Constitution, and the EACC does not have any power
to prosecute.
o There are conflicting definitions of the term integrity applied by courts in using
Chapter VI of the Constitution. EACC's role as regards to Chapter VI and the
Leadership and Integrity Bill is not clear, especially when it comes to vetting
provisions that were removed from the Bill by Parliament.
o There is a lack of political will to fight corruption, harassment and intimidation of
whistle-blowers.
o The process to take cases through the court system is often lengthy and requires
many resources.
Historically, several commissions of inquiry have been established to investigation large-
scale corruption scandals, and have recommended the prosecution of individuals who
were responsible. Most of the recommendations of these commissions have been
ignored by the State, leading to a culture of impunity.
18
Recommendations
Recommendation Responsibility for Timeframe

implementation
Formulate a national anti-corruption policy to guide the fight Attorney General 18 months
against corruption. & Parliament
Criminalize offences contained in the United Nations Attorney General 18 months

Convention Against Corruption, and include in the Kenyan law. & Parliament
Harmonize into one law the Anti-Corruption and Economic Attorney General 18 months
Crimes Act, Public Officers Ethics Act, the Ethics and Anti- & Parliament
Corruption Commission Act and the Leadership and Integrity
Act.
Make a definition of integrity and the integrity threshold that EACC 6 months
should be used to disqualify or remove a person from public
office, and especially whether it is at the time:
- when mere allegations are made against an individual
- when an individual is under investigation
- when an individual is under prosecution
- when an individual is convicted
- when an individual has exhausted his right of appeal after
conviction
Undertake investigations into the grand corruption scandals EACC 18 months
mentioned in the Commission’s report, which have remained
unresolved for many years. Appropriate prosecution must
follow the investigations. The list of persons recommended for
additional investigation and prosecution is contained in
Volume 4 of the report.
Increase to nine, and the staff number should also be Attorney General 18 months
increased, in order to deal with the work-load due to & Parliament
devolution.
Amend Article 79 of the Constitution to specifically provide for Not specified – Not
the powers and functions of EACC. presumably specified
Parliament
Release the report of the Commission of Inquiry into the President 6 Months
conduct of the Artur Brothers and their Associates (Kiruki
Report).
19
Volume IIC
Gender and Gross Violation of Human Rights: Focus on Women

This chapter identifies abuses which took place against women during the course of the mandate, in
addition to the deep-rooted historical injustices perpetrated against women by the State.
Women experience broad, gender based, persecution due to male dominance embedded in
the Kenyan culture. This has been manifested in aspects of widow rights, both regarding
matrimonial property rights, and widow inheritance; sexual violence; preference of male
children; early marriage and bride price; female genital mutilation (FGM); and State
discrimination.
Kenyan women faced an array of difficulties, which perpetuated their lower standing in the
society, as a result, there is an culmination of complex social and economic factors which
affected them. These factors include the feminization of poverty, women employment,
women and land rights, maternal mortality, due to lack of access to health facilities, and the
perception of women living with HIV/AIDS.
Women were not sufficiently represented in decision making arenas, and there has been a
history of political exclusion and State repression in a meaningful political participation of
women.
State repression for women involved in politics included false accusations, which led to
wrongful convictions, public humiliation and torture. Women have also suffered State
repression through the effects of harm inflicted to their husbands and children.
In recent conflicts, women have become the specific targets of violence during conflicts, which
was particularly evident in instances of sexual violence. While this has been observed in Kenya
throughout history, the Report focused on the Mau Mau war, the Mt. Elgon conflict, the
2007/2008 post election violence, and periods of forced displacement. Forced displacements,
have been described as a permanent feature of Kenya's history, and still persists to date.
Women, already in a vulnerable state at refugee camps, were exposed to increased risks of
human rights violations, sexual violence in particular.
Formal peace making processes have often excluded women, despite their known positive
contributions at the informal level, and in the process of rebuilding of communities.
Special attention should be paid to the most vulnerable among women, including those in rural
and slum areas, internally displaced and refugees, disabled, living with HIV/AIDS, and from
minority and indigenous groups.
Cooperation is needed from all levels of the society, including the government, social services,
health providers, civil servants and communities, to end long lasting human rights violations
against women.
The report is calling for an end to the outlined violations against women in all forms, and for the
advancement of substantive gender equality, in order to prevent these abuses from
progressing into the future.
Women's issues have long been neglected by the State, but it was noted that for Kenya to heal
and grow as a nation, the problems and hardships faced by women must be addressed.
20
Recommendations
Recommendation Responsibility for Time

Implementation Frame
Make a public and unconditional apology for the State’s President 6 months
sanction of discrimination against women.
Increase measures to raise awareness about harmful Equality and

cultural practices, that adversely affect the enjoyment of Gender
human rights by women. Commission
Expedite the enactment of the Marriage Bill 2007, the Attorney General 18 months
Matrimonial Property Bill 2007, the Family Protection Bill and Parliament
2007 and the Equal Opportunities Bill 2007.
Conduct an independent survey of the willingness of Kenyan and 9 months
Kenyan refugees in Uganda to return to Kenya, and Ugandan
return and resettle those who are willing. governments and
UNHCR
Ensure that the composition of land dispute tribunals Ministry of Lands 12 months
meet the Constitutional gender ration requirement.
Enact a Plan of Action, highlighting measures to be taken Ministry of 12 months
in order to increase and improve maternal health Health
facilities in the country, with the aim of reducing the
number of home delivery cases.
Children and Gross Violation of Human Rights
Chapter summary and findingss
The TJRC worked with the relevant child protection organizations and agencies, in
formulating both the narrative and recommendations for this chapter. The TJRC made
deliberate efforts to facilitate children's participation in its proceedings in order to ensure
that children's interests and views were captured in the findings. Furthermore, because
children have also witnessed human rights violations, they were identified as holders of
relevant information to TJRC's mandate.
The TJRC's findings were based on approximately 2000 statements from children, and
multiple reports and testimonies from adults and representatives from civil society
organizations and child protection agencies.
The TJRC established that conflict and political unrest further increased the vulnerability of
children.
Education: The TJRC established that there was lack of accessibility to education by children
with disabilities.
Health: The TJRC established that not all children in Kenya were able to access health care
services due to economic and infrastructural factors, and the lack of responsible care givers.
21
Child labour: The TJRC established that the phenomenon of child labour has been a
historical issue, dating back to the colonial period when children worked on farms owned by
white settlers. However, incidences of child labour have been on the rise since then.
o Enforcing the law in cases of sexual exploitation of children is hampered by
uncooperative relatives, who choose to receive a compensation instead of
prosecution of the perpetrators.
o Domestic violence increases the vulnerability of children to child labour. Similarly,
violent conflict also makes children vulnerable to child labour. Many children, for
instance, were forced into the labour market by the 2007/2008 post election violence
(PEV).
Children and Conflict: Violent conflicts have marred Kenya's history since independence and
have had a profound impact on children. For example, during the colonial period, the Mau
Mau children were subjected to traumatic experiences, and witnessed atrocious crimes
committed against their parents and adults in general.
o Atrocities were committed against children including killing, maiming, torture and
sexual violence. Children were also witnesses to crimes, from which many survivors
remain traumatized.
o The TJRC established that children were both direct and indirect victims of gross
violations of human rights committed in the following contexts: the Shifta War,
security operations in Northern Kenya, the Mt. Elgon conflict, ethnic clashes of 1992
and 1997, and most recently, during the 2007/2008 PEV.
Sexual violence: Sexual violence occurred in many different contexts, from conflict
scenarios to an increasing number of girls being defiled by their peers in school. This
underscored how unsafe, even perceived safe havens can be in Kenya.
o Male children are also victims of sexual violence. According to the 2011 Kenya Police
Statistics, 114 cases of sodomy were reported.
Forced recruitment: Vigilante and militia groups in Kenya sometimes forcibly recruit
children.
The phenomenon of forced recruitment of children into these groups, highlights the
complex status of such children as victims and perpetrators all at once. Examples given
are Mungiki, SLDF, PEV.
Plight of internally displaced children: Have had an adverse impact on health and education.
Plight of refugee children: The TJRC went to Kiryandongo Refugee Camp in Uganda and
found that many youth want to return to Kenya. It also discovered that many of their parents
were not ready to return to Kenya, because some have found land where they can cultivate
and make a livelihood, which has made the prospect of returning to uncertainty in Kenya,
not very desirable.
Juvenile Justice: The TJRC received testimonies concerning violations against juvenile
delinquents. According to these findings, children in need of care and protection, such as
abandoned children, often find themselves in the juvenile system which is designed for child
offenders. Street children, many of whom fall under this category, told the TJRC that they are
harassed by police officers instead of being assisted.
22
o At the pretrial stage and during trials, if a child had to remain in custody, he or she was
placed in a remand home. However, remand homes in Kenya do not have the capacity to
cater for all children. Children are therefore placed in cells and separate wards in prisons.
Children's rights are not protected within these facilities. In some cases, children were kept
together with adults where allegations of sexual abuse have followed.
o While most prisons have created separate wards for children facing trial, the overall
environment is not conducive for them. Like police cells, these wards lack adequate facilities,
such as beds and appropriate food, necessary for the proper development of children.
Though there may be separate wards for children in most of the facilities, in practice children
are exposed to adult criminals who may influence their character.
o While the diversion programme allows police officers to use restorative justice mechanisms
when dealing with alleged child offenders, the TJRC established that such mechanisms
were rarely used.
o While children's desks are now provided in some police stations, it is evident that they are
not operating optimally. Some officers running the desks have not been trained on child
rights and child-friendly procedures.
o Though legally custodial sentences were only to be ordered as a last resort, some children
not suited for custodial sentences are committed to Borstal institutions. Borstal institutions
are intended to rehabilitate children, yet they are operated by prison officers who are
trained to run traditional retributive prisons meant for adults. For example, despite the
outlawing of corporal punishment, it is still practised in some Borstal institutions.
State responses to human rights violations against children:
o some Police help children in need of care;
o the Judiciary has progressive children's courts; and
o the creation of the Department of children's services.
Non-State actors have played a key role in monitoring child protection, capacity building, etc.
Recommendations
Give a public and unconditional apology. President 6months
Provide psychosocial counseling for children victims of Implementation Mechanism and relevant
atrocities. government departments/ institutions
Reparation for children victims of atrocities and injustices. Implementation Mechanism 36
Reorganize Borstal institutions so that they are under the Office of the President 12
supervision of the Department of Children’s Services.
Provide adequate funding of the Department of Children’s Ministry of Finance Continuous
Services.
Plan for the Integration of children with disabilities into Ministry of Education 12
mainstream educational facilities.
Minority Groups, Indigenous People and Gross Violation of Human Rights

This chapter identifies Kenya's minorities to include:
o Non-Africans such as Kenyan Asians.
o Religious minorities such as Muslims, Hindus, and those who follow traditional African
Religion.
o Ethno-linguistic minorities such as the Nubians.
23
o The chapter also identifies indigenous people, for example hunter-gatherers and fisher
people, and discusses internal minorities such as clans within the Somali community.
The TJRC identified the following human rights issues regarding minorities and indigenous
people:
o Lack of formal recognition: Communities such as the Nubians, Munyoyaya, Waata, Ogiek,
Sabaot, Kuria, Kona, Bajuni, Itara, Saakuye, Burji, Issak, Sengwer and Suba were not
identified in the national census exercises of the past, as the country only recognized 42
tribes.
o Citizenship: The chapter outlines the difficulty experienced by communities in Northern
Kenya and the wider Muslim community, when applying for identification documents.
The Galjeel community, in particular, went through a screening exercise in 1989, which
led to a majority of them losing their national identification cards in the process. Court
decisions calling for the protection of minorities in the area of citizenship have not been
implemented.
o Discrimination: The chapter highlights the need to respect the unique identities of
minority and indigenous communities. The Nubian community, among others, claims to
be wrongly described in textbooks, where their history is inaccurately accounted for.
o Collective punishment: The chapter identifies collective punishment to have taken place
mostly in Northern Kenya, during operations of disarmament. The Wagalla massacre is
mentioned as a clear example of such collective punishment. Communities such as the
Pokot have also lost their livestock to security personnel during security operations. The
State has also used force to prevent communities such as the Maasai, from reclaiming
their land. The State is also accused of failing to protect communities, by not responding
to calls for assistance, to stop raids or inter-communal conflict.
o Violation of land rights: The chapter states that minority and indigenous communities
have lost their lands, because of the State's failure to address historical injustices of
colonialism and the trust land system, which allowed local governments to give away
their land. Some examples of affected communities include the Ogiek, Sengwer, Boni,
Endorois, Maasai and Coastal communities.
o Violation of the right to development: Government policies focused on investing in “high
potential areas” and not the “low potential areas” where many minority communities
live. Even with the current national development agenda, known as Vision 2030, there is
not enough public participation to ensure that the interests of minority communities will
be protected. (Examples of development projects that have harmed communities
include the Turkwel Hydro-Electric power Station, and geothermal development project
at Ol Karia.
o Political participation: The chapter describes the experiences of the Sengwer, Ogiek,
Maasai, Endorois and Il Chamus to demonstrate how difficult it is for minority and
indigenous communities to have their members elected to political offices.
o Barriers to access justice: Often, in areas where minorities and indigenous cultures are
predominate, there are no adequate courts. Additionally, there are also not enough legal
aid services to assist these communities, and even where there are present, they lack the
required expertise to help. Further, it is important to understand and respect the
customary systems of justice alongside the formal ones.
o Minority and indigenous women: Poverty is higher among the women of minority and
indigenous communities who suffer considerably in areas of education and health. They
have also suffered discrimination in areas of marriage and inheritance, where negative
customary practices have been applied. Women are far less likely to own land, as they
only comprise less than 5 percent of land title holders in Kenya.
24
In addition, the TJRC established that:

A series of massacres took place in Minority and Indigenous Population (MIP) regions: Bulla
Karatasi/ Garissa Gubai, Wagalla, Malka Mari, Lotirir, Murkutwa and Loteteleit, and the
State either was a perpetrator of collective punishment or failed to provide security.
The State conducted numerous oppressive security operations.
The State failed to recognize the existence, unique culture and contributions of minority
and indigenous people, and has discriminated against these communities, through
emergency laws and regulations, for example the Nubian, Somali, Galjeel and other Muslim
communities.
The State failed in its responsibility to protect communities, allowing for inter-communal
violence in predominantly pastoralist areas.
The State failed to engage communities in addressing boundary disputes, which led to
constant conflicts, killings, displacement, loss of livelihoods and undermining of social
development.
The expulsion of Endorois, Ogiek, Sengwer, Wataa, Bajuni, Boni Talai and other
communities from ancestral lands has led to loss of livelihoods.
The State has failed to protect minority and indigenous women and girls from violence and
harmful traditional practices.
Kenya's land regime was discriminatory, and this led to massive dispossession of ancestral
lands of pastoralist and hunter-gatherer communities.
The State's development policies have failed to protect the rights of minorities and
indigenous people to free, prior and informed consent. Development projects have
deepened marginalization and exclusion of minority groups.
The State has failed to implement important judicial decisions related to promoting and
protecting the rights of minority groups.
Recommendations
Ratification of various international instruments; ILO 169; Ministry of Foreign Affairs 24 months
Convention on Prevention and Punishment of the Crime of
Genocide; Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families; Convention
Against Discrimination in Education; and Statelessness
Convention.
Fast-tracking of legislation on as envisaged by article 100 of the Attorney General, Constitutional Not specified
Constitution of Kenya. Implementation Committee
Give a public and unconditional apology for systematic President 6 months

discrimination.
Remove obstacles experienced by minority groups in accessing Ministry of Immigration and Registrar 12 months
national identity cards. of Persons
A review of all legislation to eliminate de jure and de facto Kenya Law Reform Commission 6 months
discrimination of MIPs, and also prepare legislation on free,
prior and informed consent and consultation with communities.
Institute a plan on data collection and disaggregation on MIPs, Kenya Bureau of Statistics and Not specified
with special attention to MIP women and incorporation of the Ministry of National Planning
principles of the UN Expert Workshop on Data Collection and
Disaggregation for indigenous peoples.
Release and implementation of recommendations of the Relevant ministries and institutions Not specified
Presidential Special Action Committee, to Address the Specific
Concerns of the Muslim Community.
25
Implementation of decisions relating to minority Various relevant 12 Months

and indigenous communities: ministries and
1. Endorois decision: Recognise rights of institutions
ownership to the Endorois and restitute
Endorois ancestral land; ensure that the
Endorois community has unrestricted access
to Lake Bogoria and surrounding sites; pay
adequate compensation to the community for
the loss suffered and; pay royalties to the
Endorois from existing economic activities
and ensure that they benefit from
employment possibilities within the reserve
2. Nubian children case: Legislative,
administrative, and other measures in order
to ensure that children of Nubian decent in
Kenya, who are otherwise stateless, can
acquire a Kenyan nationality, and the proof of
such a nationality at birth; adopt a short term,
medium term and long term plan, to ensure a
fulfillment of the right to the highest
attainable standard of health, and of the right
to education, preferably in consultation with
the affected beneficiary communities;
implement a birth registration system in a
non-discriminatory manner, and take all
necessary legislative, administrative, and
other measures, to ensure that children of
Nubian descent are registered immediately
after birth.
3. Charles Lekuyen Nabori and 9 Others v.
Attorney General : A case regarding the right
to sustainable development, where the
government was held accountable for the
damage caused after introducing a harmful
weed in Baringo district should be finalized.
26
Volume III
Ethnic Tension

In this chapter, the TJRC documents the main causes and effects of ethnic tension in Kenya.
Colonial origins of ethnic tension

The British colonial government utilized a policy of 'divide and rule' and ethnic stereotyping
in order to consolidate their power, created ethnically defined administrative boundaries,
affecting historical inter-ethnic interactions, and focused on developing productive areas of
the country 'white highlands' at the expense of the rest of the country.
These colonial policies resulted in inequality, forced displacement and land conflicts.
Historical injustices remained largely unaddressed in independent Kenya, because ruling
elites did not have the political will or commitment to create a truly democratic and
prosperous Kenya for all its citizens.
Causes of ethnic tension in the post-colonial era

Insider and outsider dynamics have directly or indirectly caused ethnic tension and violence
when:
o Communities assert a superior claim over a territory, to the exclusion of others.
o Areas occupied by individuals from outside the region enjoy better services.
o Places occupied by those considered 'outsiders' have been given 'outside' names.
o During electoral processes, 'outsiders' are required to vote for the preferred political
candidate of the local community. For example, in Rift Valley, non-Kalenjins are
expected to vote according to the Kalenjin preferences.
Negative ethnic stereotypes have caused exclusion, political discredit, economic
marginalization and violence against members of stigmatized ethnic communities.
Resource-based conflicts, such as cattle rustling, have directly or indirectly caused ethnic
tension amongst pastoralist communities, particularly in the North Eastern regions.
The following political related issues have directly or indirectly caused ethnic tension:
o President Jomo Kenyatta's ethnic community enjoyed huge economic prosperity and
political influence, alienating other ethnic groups as well as many non-conforming
Kikuyus, from government affairs.
o The assassination of some political leaders, such as Tom Mboya, and the banning of
some political movements, such as KPU increased ethnic tension, and were perceived
to be linked to certain communities.
o President Daniel Moi filled the civil service and State-owned institutions with
members from his ethnic group, and those from ethnic communities that were viewed
as being supportive to his regime.
o Since 1991, multi-party politics have mainly comprised of regional, ethnic-based and
poorly institutionalized.
o President Mwai Kibaki's cabinet also had a disproportionate number of members from
his ethnic group.
27
The following land related issues have directly or indirectly caused ethnic tension:
o The post-colonial land redistribution policy that was deliberately designed to favor the
ruling class and not the landless masses, resulted in more than half of the arable land in
the country landing in the hands of only 20 percent of the population.
o Politicians in government used land to induce patronage and build political alliances.
o The practice of illegal allocation and distribution of land led to a general feeling of
marginalization among some communities, creating confrontations for access to rich
and productive land.
Other government policies have benefited some ethnic groups, at the expense or to the
exclusion of others. For example, assistance to some displaced people from certain
favoured communities and the requirement for members of the Somali community to carry
a special pass.
Other official inquiries on ethnic clushes have been conducted, namely the Akiwumi, Kiliku
and KNCHR “on the Brink of the Precipice” 2008). The TJRC report recommends that
appropriate legal action should be taken against the perpetrators.
Recommendations
implementation
Investigation and prosecutio n of all adverse person— Director of Public (No mention
notwithstanding their official or other status—mentioned in official Prosecutions in the report)
reports on political instigated ethnic vio lence or clashes
Foster reconciliation and cohesion in areas where there has been a NCIC and NSC Continuous
perennial problem of ethnic tension and violence. In this regard, on Peace-building
hold comprehensive and sustained community dialogues. and Conflict
Management
Ensures that every police station in Kenya reflects ethnic diversity. Police Service (No mention
Commission in the report)
Ethnic Tension , land and politics: Case Study of Mt. Elgon Conflict
In this chapter, the TJRC has documented the case of conflict in the Mount Elgon region of Kenya.
The TJRC established that the emergence of the Sabaot Land Defence Force (SLDF) in Mt.
Elgon region was precipitated by the government failure to address land-related injustices
suffered since the colonial period.
The TJRC also attributed much of the tensions in the region to the relationship between two
politicians who represented the constituency in Parliament: Fred Kapondi and John Serut:
o The TJRC heard extensive testimonies about Kapondi's illegal actions.
Kapondi's eventual political success, as an elected Member of Parliament under ODM
in the 2007 election, has been credited to the ruthless elimination and intimidation of
his rivals, by people who were believed to have been SLDF fighters. In 2005 the
Chepkurur and Korng'otuny Community Based Organization members claimed that
Kapondi, via informal conversations, advised them to take up arms. These
allegations are denied by Kapondi.
o There were also allegations that Serut provided weapons to the SLDF at the initial
28 stages.
The TJRC established that the SLDF initially engaged in fairly low-scale skirmishes until the
time when full-scale violence erupted, after the publication of the final list of plot allocation
for the Chepyuk III land resettlement scheme in 2006.
o The SLDF was responsible for numerous gross violations of human rights including
killings, torture, mutilation, and sexual violence.
o The membership of the group consisted mostly of boys and young men, who were
either taken out of school, abducted from their homes or joined voluntarily.
o The SLDF received financing from politicians (John Serut, Fred. Kapondi, Jackson
Psongoiywo and other high ranking ODM officials, although they deny it), but this
financial assistance has been limited, as the group largely sustained itself through
looting, cattle rustling and extorting local residents through taxes, food theft, and
“protection” fees.
The TJRC established that the military, the GSU, and the police tortured, unlawfully
detained, killed, forcibly disappeared, and committed sexual acts of violence against Mt.
Elgon residents during the 2008 security operation Okoa Maisha. The TJRC stated that:
o During the operation, the Police and Military forces were equally responsible for the
gross violations of human rights.
o It is clear that the Military force were in operational command over the purportedly
joint mission. This chain of command suggests that not only did the commander of the
military, Col. Boiwo, know what was taking place during the round-up in the villages,
and later at the camps, but he also played an active role in giving orders that led to the
alleged human rights abuses.
By 2008, over 600 individuals had died because of the Mt. Elgon conflict, and approximately
66,000 had been displaced. This led to the separation of families and disruption of the
education to thousands of pupils. Furthermore, as a result of the disruptions to farming
activities due to people displacement, the economy suffered greatly.
Recommendations
implementation
Prosecute individuals who were involvement in militia activities in Mt. Director of Public Prosecutions 18 months
Elgon including financing, planning and instigating violence in the
region: Fred Kapondi; John Serut; and Jackson Psongoiywo.
Prosecute Colonel Stephen Boiywo who was serving as the Director of Public Prosecutions 18 months
Commanding Officer, during the military intervention in Mt. Elgon in
2008.
Compensate individuals who suffered atrocities during the Mt. Elgon Implementation Mechanism 36 months
conflict.
Establish a trauma and healing center in Mt. Elgon region, for purposes Implementation Mechanism 12 months
of providing psychosocial support to the victims and survivors. Special and relevant government
attention should be paid to widows in the region. institutions
Map all mass graves and other locations where bodies were dumped or Implementation Mechanism 36 months
disposed off during the Mt. Elgon conflict, with a view to exhuming and and relevant government
identifying the bodies for proper burial. institutions
Public acknowledge and apologize to the people of Mt. Elgon, for President /Inspector General of 6 months
atrocities committed against them by Police and Military forces, and for Police/ Chief of Defence Forces
the failure of the State to protect them against atrocities committed by
SLDF.
Establish a public monument in Mt. Elgon, to commemorate the victims Implementation 36 months
and survivors of the Mt. Elgon conflict, especially those who were killed mechanism/Ministry National
or forcefully removed, both by the SLDF and State security agents. Heritage/ National Museum
29
Healing and Reconciliation

This chapter begins with a narrative of Kenya' s political history, stating that it has been characterizes by
gross violations of human rights that took place between 1963 and 2002. The Human rights violations
are attributed to the authoritarian, oppressive and corrupt governments of president Jomo Kenyatta
and Daniel Moi. Over the four decades, Kenyan communities suffered both physical and physiological
wounds, and remained divided along ethnic and regional lines. The causes of the conflict according to
the report include: land inequality and regional imbalances, governments' impunity, and lack of
transparency and accountability. These problems led to a lack of a sense of belonging, nationhood, and
public trust, in political and governance institutions by the people of Kenya.
The report highlights the government's failure since independence, to acknowledge and address the
above mentioned fundamental issues, which contributed to the bitter and painful memories that have
been passed from one generation to the next. This led to the unprecedented violence that was
witnessed in Kenya, following the disputed presidential elections of 2007. The violence that saw
approximately 1,333 people lose their lives, approximately 650,000 displaced and property worth of
millions destroyed, mainly on tribal/ethnic lines.
It was after the post election violence that the TJRC was established with a mandate to promote peace,
justice, national unity, healing and reconciliation, among the people of Kenya.
The Truth Justice and Reconciliation Commission Act of 2008 provided the TJRC with the mandate of
reconciliation under Section 5(g), Section 5(j), Section 6(s) and Section 6(j).
After deliberations amongst the commissioners, it was agreed that the role of the TJRC towards
reconciliation was to provide a platform for beginning the process of reconciliation, between
individuals and communities—it recognized that meaningful reconciliation is a personal decision , and
not an event, but rather a long process. The TJRC agreed that reconciliation must be based on the
following:
Reconciliation is both a goal and a process; it is experienced at different levels (inter-personal,
community and national);
Reconciliation has links to redistribution, in terms of material reconstruction and the restoration of
dignity;
There is no universal model of reconciliation that can be applied by all countries'.
Reconciliation Activities
In accordance with section 22 of the TJRC act, reconciliation activities were spearheaded at the
commissioners' level and at the secretariat level by the department of Civic education and outreach.
The TJRC also initiated working relationships with the National Cohesion and Integration Commission
(NCIC) and the National Steering Committee on Peace Building and Conflict Management.
Reconciliation activities took the form of countrywide reconciliation forums, workshops on trauma
healing and strategy formulation, healing and truth telling forums. These forums sought to
understand the meaning of reconciliation for different communities; specific issues in each region
that bring about tension, hostility, hatred and conflict; forums gave communities the opportunity to
suggest specific solutions to issues affecting them; to assess levels of healing and reconciliation; to
identify local actors who could spearhead trauma healing and reconciliation; to explore local
mechanisms for healing and reconciliation; and to provide victims, perpetrators and the general public
with a platform for non-retributive truth telling.
30
Perspectives of victims
The TJRC established that victims had various ways of dealing with trauma and the suffering they
had encountered. Some were willing to forgive, based on their religious beliefs, the lapse of time
since the violations took place, helplessness and the desire to move on with their lives. Some
victims showed sympathy for the perpetrators, acknowledging that they too were victims of a bad
system, while most indicated that reparation was key to reconciliation. The reparations conditions
demanded from perpetrators were confession and apologies, justice, compensation and the
demand for a meeting with the alleged perpetrators in order to understand why they acted the way
they did. Some victims demanded an apology from the government for its inability to protect them
from violations, when they occurred.
The TJRC also established that communities were not willing to integrate perpetrators back into the
society, after going through the justice system.
Perspectives of perpetrators and Adversely Mentioned Persons
The TJRC established that most of the adversely mentioned persons denied their involvement and
knowledge of violations.
They also trivialized the extent of the violation. For example when Benson Kaaria was questioned
on the Wagalla massacre, he defended the security operation and stated that it was successful, and
that is despite the fact that over 57 persons were killed and only four (4 )Guns recovered.
Most of the adversely mentioned persons refused to apologize, stating categorically that they had
nothing to apologize for.
Challenges
The TJRC established that although reconciliation efforts have been ongoing in Kenya through
various governmental and nongovernmental organizations, the efforts have largely focused on the
conflict prone areas, towards violence prevention and humanitarian interventions. There has
been lack/limited involvement conflicting communities and concerned individuals. Failure to have
follow up reconciliation processes and evaluation, duplication of efforts which are uncoordinated,
and are not harmonized. The TJRC further noted that there is need for a 'bottom top' approach, in
order to ensure that reconciliation efforts are not only home-grown, but are also sustainable.
Other challenges highlighted are: lack of political will; failure by the government to put in place
social processes, structures and institutions, which should oversee the reconciliation processes so
that they are not only promoted, but also where they exist, are solidified and maintained; and,
failure to address the root causes and allegations of impartiality by government agencies.
Opportunities and conclusion

The report acknowledges the Constitution of Kenya and the existence of a progressive legislation,
as the main opportunities that exist towards reconciliation. It concludes by noting that healing and
reconciliation requires political leadership, the government should provide national direction,
especially by making clear policies on reconciliation, followed by a commitment to implement
these policies.
31
Recommendations
RECOMMENDATION RESPONSIBLE FOR TIMELINE

IMPLEMENTATION
Hold a national reconciliation Conference. President/implementation 6 months
Mechanism, NCIC/ NSC
Investigate and prosecute all adversely Director of Public Not specified
mentioned persons in official reports on prosecutions
politically instigated ethnic violence and/or
clashes.
Make an audit of institutions and mechanisms Joint Task force of the 6 months
involved in peace building, reconciliation and NCIC, NSC and CSo’s/CBO’s
early warning with a view of harmonizing their
activities and adopting a coordinated approach.
Hold comprehensive and sustained national NCIC and National steering Continuous
wide community dialogues. Committee on peace
building and conflict
management(NSC)
Issue a public report, indicating the progress on Director of Public 3 months
the investigation and prosecution of Post Prosecutions
Election Violence related cases.
Provide adequate funds for the district peace Not specified Not specified
committees, and the creation of Public
awareness on the same.
Develop a peace curriculum for use in schools. Ministry of Education Not specified
32
Volume IV
Implementation and monitoring mechanism
This chapter recommends the establishment of a Committee for the Implementation of the
Recommendations of the TJRC referred to as the Implementation Committee. The
Implementation Committee shall be established by legislation. The proposal in the report is
to have an implementation mechanism based on international best practices developed,
due to challenges that truth commissions, all over the world have faced, in getting their
recommendations implemented. The main objectives of the implementation mechanism
are to work with relevant stakeholders, to facilitate the implementation of the TJRC's
recommendations, monitor implementation of such recommendations, and to administer
the reparations fund.
Recommendations (Further detailed in Annex Recommendations and Implementation Matrix).

IMPLEMENTATION
Establish by legislation the ‘Committee for the Secretariat of the Within 3 months
Implementation of the Recommendations of the Truth, outgoing TJRC (until the
Justice and Reconciliation Commission Act’. The Implementation
Implementation Committee should be a body corporate, Committee is created)
with perpetual succession and a common seal.
Have a Chair and four other persons. It is mandated that
the Chair of the Committee should be a person with
knowledge and experience in the fields of human rights,
transitional justice, reparations, law, gender or
governance. Further, the person should be a citizen of
Kenya, not a State officer, and should meet the
requirements of Chapter Six of the Constitution on
leadership and integrity.
The Implementation Committee is to conduct an
implementation role as follows:
o administration of the reparations fund
o mapping, registering and processing victim claims,
using the TJRC database
o facilitating recommendations on memorialisation
Solicit for funding for reparations, enhance public
awareness, recruit personnel for the Technical Secretariat,
and carry out other functions.
The Implementation Committee’s Technical Secretariat
establish the following units:
o Outreach and Registration Unit
o Evaluation and Classification Unit
o Individual Claims Section
o Group Claims Section
o Victim Participation, Gender and Minorities
Unit
33
Reparations framework
Chapter summary and findings

This chapter of the Report aligns with the TJR Act, which mandates the TJRC to make recommendations
on granting reparations to victims. The TJRC recommends the establishment of a reparation fund, to
compensate victims of violations of human rights and historical injustices. The Reparation Framework
recommended by the TJRC sets out the categories of victims, who would access the funds and the cri-
teria for such access.
34
Recommendations (Further detailed in Annex Recommendations and Implementation Matrix).

IMPLEMENTATION
The State to adhere to the Basic Principles and Guidelines on the Right to Committee of the -
a Remedy and Reparation for Victims of Gross Violations of International Implementation and
Human Rights Law and Serious Violations of International Humanitarian National Assembly
Law which defines and distinguishes five forms of reparations:
restitution, rehabilitation, compensation (providing money for damage
suffered), satisfaction and guarantees of non-repetition.
Individual and collective reparations. Collective reparations are targeted - -
at groups or communities, while individual reparations are targeted at
individual victims. The report proposes material (monetary and/or
economic) reparation and non material (non monetary or non economic)
reparations.
Empower victims to enable them to participate meaningfully in the - -
implementation of reparation measures should be put in place. Only
th
violations which occurred during the TJRC’s mandate, between 12
th
December 1963 and 28 February 2008, should be considered as eligible
within the reparations framework.
Five categories of human rights violations should be considered in the - -
reparations process:
·Violations of the right to life
·Violations of the right to personal integrity
·Forcible transfer of populations
·Historical and contemporary land injustices
·Systematic marginalization
Victims to be categorized into three groups: Priority A, B and C. -
·Priority A comprises of the most vulnerable victims are under
priority A and these are orphans, child victims, elderly victims
and single heads of households. These victims are those who
suffered violations of the right to life, and violations of personal
integrity. As such they will receive rehabilitation and
compensation in the form of a 10-year pension.
·Priority B comprises of groups of victims bound by a common
identity, experience or violation. These victims include
communities that have suffered massacres, systemic
marginalization, historical land injustices, environmental
degradation, gender based violence, etc. The victims should
receive material (socioeconomic) and non-material reparative
measures. Material measures include reparations for historical
land injustices, socioeconomic measures to benefit affected
communities and governmental policy measures. Examples of
material socioeconomic measures are micro financing for
business opportunities, provision of health services to the
community, skills training and peer group counseling. Non-
material measures include provision of citizenship documents
restitution of civil rights, identification of disappeared people,
formal apologies, establishment of memorials, etc.
·Priority C is a third category of victims not otherwise provided
for, who suffered violations of the right to life violations of
personal integrity. Victims under this category receive a five-
year pension. Persons under Priority A or B cannot receive
reparations under Priority C.
35
36
37
Annex
Recommendations and Implementation Matrix
# TH EME/SUBJE CT RECOMMENDATIONS RESPONSIBILI TY FOR TIMELIN E
IMPLEMENTATIO N
1 Atrocities commit ted Acknowledgment and apolog y British government
during colonia l era Negot iation for compensation from the Kenyan government and British 12 months
British government government
2 Shifta War Acknowledgment and apolog y President and Chief of Defence Forces 6 months
Repeal of Indem nity Act Attorney General and Parliament 9 months
Publication and dissemination of the 9 months
1967 Arusha Agreement between President
Kenya and Somalia
Establ ishment of a pub lic memorial Implementation Mechanism/Ministry 24 months
responsible for National Heritage /
National Museum
3 Mass acres Acknowledgment and apolog y President, Inspector General of Police 6 months
and Chief of Defence Forces
Reparation for victims and survivors Implementation Mechanism 36 months
Release of all minutes of the relevant 6 months
District Security Committees, Provincial
Security Committee, Kenya Intellige nce
Committee and National Security
Council
Further investig ations of individuals Director of Public Prosecutions 18 months
found to have played a role in a
security operation that led to a
massacre
Lustration of in divid uals found to have Public Bodies
played a role in a security ope ration
that led to a massacre
Establ ishment of memo rials at the sites Implementation mech anism/Ministry 24 months
of massacres responsible for National Heritage /
National Museum
Return of Father Adrian Joseph Ja nito Catholic Church
for purposes of giving testimony on
Bubisa Massacre
4 Politi cal assassin ation s Acknowledgment and apolog y President 6 months
Release of all reports and materials of 6 months
all previous investigations of political
assassinations
Further investigations relating to the Director of Public Prosecutions 18 months
assassination of JM Kariuki, Robert
Ouko, Crispin Odhiamb o-Mbai and
Father Antony Kaiser
Further investig ation of the Director of Public Prosecutions to 18 months
assassination of Father Antony Kaiser appo int indepen dent investigator(s)
Establ ishment of public memorials Implementation Mechanism/ministry 24 months
responsible for national heritage /
National Museum
38
# TH EME/SUBJE CT RECOMMENDATION S RESPONSIBILI TY FOR TIMELIN E

IMPLEMENTATIO N
5 Extra-ju dicial killing s Acknowledgment and apo log y President, Inspector General of Police 6 months
and Chief of Defence Forces
24 months
Convention for the Protection of All
Persons from Enforced Disappe arance
Fast-tracking of reforms in the Police Inspector General of Police and Police
Service, including i ntrodu ction of new Service Commission
standard operating p rocedures on the
use of force
Establ ishment of a fully equ ippe d Ministry responsible for internal 36 months
modern national forensic labo ratory security and other relevant ministries/
institutions
Establishme nt of fully equipped Ministry responsible for internal 36 months
modern forensic labo ratories in each security and other relevant ministries/
county institutions
Abolition of the de ath pena lty and Attorney General and Parliament 24 months
commuting of all death pe nalties to life
imp risonment
Reparation for victims and survivors Implementation mech anism 36 months
6 Unlawful detentio n, Acknowledgment and apo log y President 3 months
torture and ill-treatme nt Enactment of legislation p rohibiting Attorney General and Parliament 12 months
torture
Legislation on and estab lishment Attorney General and Parliament 12 months
Inspe ctor of Prisons and All Places of

Detention
Prosecution of indivi duals involved in Director of Public Prosecutions 18 months
torture and ill-treatment
Designation of Nyayo House as Implementation mech anism/Ministry 12 months
memorial for victims of detention and responsible for National Heritage /
torture National Museum
Reparation for victims and survivors Implementation mech anism 36 months
7 Sexu al violence Acknowledgment and apo log y President, Inspector General of Police 6 months
and Chief of Defence Forces, and British
government
Negot iation for compens ation (in Kenyan government and British
relation to victims and survivors of government
sexual violence committed by British
soldiers i n Laikipia and Samburu)
Establ ishment of one-stop gen der Relevant government ministries,
recovery centers for provision of departments and bodies including :
comprehens ive services to victims and Ministry of Heal th; Ministry of Justice;
survivors of sexual violen ce, including Director of Public Prosecutions; Police
medic al, counseling and lega l services Service; NGEC; etc.
Legislation on and estab lishment of Attorney General and Parliament 12 months
Sexual Violence
Fast-tracking of the est ablishment of a Chief Registrar of the Ju diciary 12 months
39

IMPLEMENTATIO N
8 Access to justi ce and Fast-tracking of the establishment of Chief Justice 12 months
promotion of hum an the International Crimes Division of the
rig hts High Court
Fast-tracking of es tablishment of a Ministry of Justice/National Lega l Aid 18 months
nationwide lega l aid system (And Awareness) Programme in Kenya
(NALEA P)
Declaration u nder article 34(6) of the 12 months
Protocol to the African Ch arter on
Human and Peoples’ Rights on the
Establ ishment of the African Court on
Human and Peoples’ Rights
Issuance of a public report on the Director of Public Prosecutions 3 months (and in
progress of investigations and 3 months intervals
prosecution of 2007/2008 p ost- thereafter)
election related vi olence
Designation of 10 December as a Parliament 6 months
National Human Rights Day
Fast-tracking of en actment of human
rig hts related laws as envisage d by the
Constitution of Ke nya:
Legislation on freedom of the media
(section 34)
Legislation on fair hearing (section
50)
Legislation on the rig hts of persons
detained, held in custody or
detained (se ction 51)
9 Women Acknowledgment and apolog y President 6 months
Stepping up of measures to raise Equality and Gender Comm ission
awareness about harmful cultural
practices
Enactment of relevant laws (e.g. Attorney General and Parliament 18 months
marriage; m atrimonial property; family
protection/domestic violence)
Adoptio n and implementation of a Ministry of Heal th 12 months
Plan of Action to increase and improve
maternal health facilities and measures
to reduce delivery at home
Equitable representation of women in Ministry of La nds 12 months
all land dispu te tribunals in accordance
with the Constitution
10 Child ren Acknowledgment and apolog y President 6 months
Psychosocial counseling for children Implementation Mechanism and
victims of atrocities relevant government depa rtments/
institutions
Reparation for children victims of Implementation Mechanism 36 months
atrocities and injustices
Reorga nization of Borstal institutions 12 months
to fall under the Department of
Chi ldren’s Services
Adeq uate fund ing of the Department Ministry of Finance Continuous
of Ch ildren’s Services
Robust plan for Integration of children Ministry of Education 12 months
with disabilities in mainstream
educ ational facilities
40

IMPLEMENTATIO N
11 Minori ty g roups an d Acknowledgment and apo log y President 6 months
ind ig enous peopl e Implementation of decisions relating Various relevant ministries and 12 months
to minority/indigen ous communities: institutions
Decision of the African Commission
on Human and People s’ Rig hts
in Communic ation No. 276/2003
Center for Minority Rig hts
Developme nt (Kenya) & Minority
Rig hts Group International (on
beh alf of Endorois Welfare Council)
v Kenya
Decision of the African Committee
of Expe rts on the Rig hts and Welfare
of the Ch ild in Commun ication No.
002/09 IHRDA & OSJI (on be half
of chi ldren of Nubian des cent in
Kenya) v Kenya
Decision of the High Court of
Kenya in Cha rles Lekuyen Nabori
& 9 Others v Attorney General and
3 Others [Petition No. 466 of 2006,
High Court at Nairobi]
24 months
ILO Convention 169
Convention on the Prevention
and Punishment of the Crime of
Genocide
Convention on the Protection of the
Rig hts of All Migrant Workers and
Membe rs of Their Families
Convention Agai nst Dis crimination
in Education
Statelessnes s Conventions
Fast-tracking of le gislation on as Attorney General, Constitutional
envisage d by section 100 of the Implementation Committee, and
Constitution of Ke nya National Gender and Equality
Commission
Removal of existing obsta cles Ministry of Immigration and 12 months
experienced by min ority groups (e.g., Registration of Persons
member s of Somali and Nub ian ethnic
groups) in accessing n ational identity
cards
Review of a ll legislation to eliminate Kenya Law Reform Commission 6 months
de ju re and de facto discrimination and National Gender and Equality
again st minority/indigeno us Commission
communitie s
Developme nt and impleme ntation of Kenya Bureau of Statistics and Ministry
a plan on data collection on minority of National Planning
and indigenous communities
Implementation of the Relevant ministries and institutions
recommendations of the Presidential
Specia l Action Commit tee to Address
Community in Reg ard to Allege d

Harassment and/or D iscrimination in
the Applic ation/Enforcement of the
Law
41

IMPLEMENTATIO N
12 Economic m argi naliz atio n Formulation, adoption and Relevant Ministries and institutions 12 months
and violatio ns of s ocio- impleme ntation of a policy on including Ministry for Finance, Ministry
econ omic rig hts the economic development of of Health, Ministry of Education,
Commission on Revenue Allocation, etc.
Commission
Focus :
Roads and infrastructure
Health
Education
Water
Collective reparation for communities Implementation mech anism and 36 months
relevant state ministries and institutions
the Commission
13 Land Further investig ations of allege d illega l National Land Commission
or irreg ular acquisition of land
Survey, demarcation and registration
of publ ic land
Adjudication and registration of land National Land Commission
at the Coast and other areas where this
has not been do ne
Developme nt and maintenance of a Ministry of La nds and National Land
computerized inventory of all land Commission
Reparation for historical land injustices Implementation Mechanism and 36 months
National Land Commission
14 Economic Crimes a nd Harmonization of the various laws Attorney General and Parliament 18 months
Grand Corrupti on relating to comb ating e conomic crimes
and grand corruption
Domestic c riminalization of certain Attorney General and Parliament 18 months
Convention Against Corruption

Expans ion of the Ethics and Anti- Attorney General and Parliament 18 months
Corruptio n Commission (from 3 to 9
commissioners)
Fast-tracking of investigations of EACC 18 months
corruption cases which have remained
unresolved for many years
EACC 6 months
15 Ethn ic tension and National Reconciliation Conference/ President/Implementation Mechanism/ 6 months
reconcili atio n Day NCIC/NS C
Investig ation and prosecution of all Director of Public Prosecutions
reports on po litical instigated ethnic

violence or clashes
Audit of insti tutions and mechanism Joint Task Force of the NCIC, NSC and 6 months
involved in peacebuilding, CSOs/CBOs
reconciliation and early warning with
a view to harmonizing t heir activities
and adopting a coordinated app roach.
Comprehensive and sustained n ation- NCIC and National Steering Committee Continuous
wide commu nity dialogues
Manage ment (NSC)
42

IMPLEMENTATIO N
16 Acknowledgment and apo log y President/Inspector General of Police/ 6 months
Chief of Defence Forces
Establ ishment of a counseling and Implementation Mechanism and 12 months
healing center relevant government ministries/
institutions
Establ ishment of a mem orial for Implementation mech anism/Ministry 36 months
victims and survivors responsible for National Heritage /
National Museum
Exhumation and reburial Implementation Mechanism and 36 months
relevant government ministry/
institution
Prosecution of indivi duals allege d to Director of Public Prosecutions 18 months
have been i nvolved in t he planning,
other atrocities
Prosecution of army comm ander in Director of Public Prosecutions 18 months
charge of Ope ration Okoa Maisha
17 Forced disp lacement Facilitation and resettlement of Kenyan Relevant Government Ministry/ 18 months
refugee s in Ugan da who a re willing to Department responsible for matters
return to Kenya relating to internal displacement.
Fast-tracking of the ope rationalisation Relevant Government Ministry/ 6 months
of the Prevention, Protection and Department responsible for matters
Assistance to Internally Displa ced relating to internal displacement.
Act, No. 56 of 2012

Audit and registration of all IDPs who Implementation Mechanism and 12 months
National Consultative Coordination
Nyumbani wit h a particular focus on Committee on Internally Displaced
integrated IDPs Persons
Reparation for IDPs and refugee s Implementation Mechanism 36 months
24 months
Convention for the Protection and
Assistance of Internally Displaced
Persons
18 Reports of commissi ons Release of reports of previous President 6 months
of inq uiry commission of inquiries and related
bodies:
Report of the Comm ission of Inqu iry
into the 1992 Raid on Bi shop Gitari’s
House in Kirinyag a
Report of the Commis sion of
Inqui ry into the Condu ct of the
Artur Brothers and their Associates
(‘Kiruki Report’)
Report of the Presidential Action
Concerns of the Muslim Community

in Rega rd to Harrassment and/or
Discrimin ation in the App lication
and Enforcement of the Law
(‘Sharawe Report’)
43

Kenya TJRC Summary Report Aug 2013

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Table of contents

Volume III ..............………………...............………………...............………………...............…………27

Annex: Recommendation and Implementation Matrix………………………………..................38

KTJN hopes that civil society organizations, government bodies, community-based

About Kenya Transitional Justice Network

KENYA HUMAN RIGHTS COMMISSION THE KENYAN SECTION OF THE INTERNATIONAL

Methodology and process

The TJRC structured its work under four phases:

Table 1: Statements taken- distribution by region and gender

The report discusses four main challenges:

Credibility and suitability of the Chairperson

Lack of political will

History of security agencies

Recommendation Responsibility for Timeframe

Chapter summary and findings

Unlawful detention, Torture and Ill-treatment

Conversion of Nyayo House into a memorial site after consultations with - -

Chapter summary and findings

TJRC's Approach to Examining Violations:The role of the State, in respect to

Land and Conflict

Chapter summary and findings

Economic crimes and Grand Corruption

Chapter summary and findings

Recommendation Responsibility for Timeframe

Criminalize offences contained in the United Nations Attorney General 18 months

Chapter summary and findings

Recommendation Responsibility for Time

Increase measures to raise awareness about harmful Equality and

Children and Gross Violation of Human Rights

Chapter summary and findingss

Minority Groups, Indigenous People and Gross Violation of Human Rights

In addition, the TJRC established that:

Give a public and unconditional apology for systematic President 6 months

Implementation of decisions relating to minority Various relevant 12 Months

Chapter summary and findings

Colonial origins of ethnic tension

Causes of ethnic tension in the post-colonial era

Chapter summary and findings

Healing and Reconciliation

Opportunities and conclusion

RECOMMENDATION RESPONSIBLE FOR TIMELINE

Recommendations (Further detailed in Annex Recommendations and Implementation Matrix).

RECOMMENDATION RESPONSIBLE FOR TIMELINE

Chapter summary and ﬁndings

Recommendations (Further detailed in Annex Recommendations and Implementation Matrix).

RECOMMENDATION RESPONSIBLE FOR TIMELINE

# TH EME/SUBJE CT RECOMMENDATION S RESPONSIBILI TY FOR TIMELIN E

Inspe ctor of Prisons and All Places of

Reparation for victims and survivors Implementation Mechanism 36 months

# TH EME/SUBJE CT RECOMMENDATIONS RESPONSIBILI TY FOR TIMELIN E

# TH EME/SUBJE CT RECOMMENDATION S RESPONSIBILI TY FOR TIMELIN E

Community in Reg ard to Allege d

# TH EME/SUBJE CT RECOMMENDATIONS RESPONSIBILI TY FOR TIMELIN E

Convention Against Corruption

reports on po litical instigated ethnic

# TH EME/SUBJE CT RECOMMENDATION S RESPONSIBILI TY FOR TIMELIN E

Act, No. 56 of 2012

Concerns of the Muslim Community

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