Reflecting on the Gains..... Marching towards Constitutionalism.....

 Katiba Day Celebrations

The Journey, Gains and Nature of the Constitution of Kenya 2010

Katiba Day is held in commemoration of the day the Constitution of Kenya 2010 was promulgated and came into force. August 27, 2010 marks an important milestone in the long and winding struggle for a new constitutional dispensation

The 2010 Constitution of Kenya replaced the 1969 constitution, that itself had replaced the 1963 independence constitution. The constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters. The constitution was promulgated on 27 August 2010

Brief History of Constitutional Reform in Kenya

Ø  Kenya has had two major constitutional reforms involving wholly new texts since gaining independence. The first was in 1969 while the second was in 2010

Ø  In 1969, the 1963 independence constitution was replaced with a new text that entrenched amendments already made to the system of government that the independence constitution had contemplated.

Ø  These changes included: changing the structure of the state from a federal, or Majimbo system, to a unitary system; creating a unicameral instead of bicameral legislature; changing from a parliamentary to a semi-presidential system with a powerful presidency; and reducing the protections of the Bill of Rights.

Ø  Further amendments to the 1969 constitution were later effected, including, in 1982, the institution of a de jure single party government.

Ø  The demand for a new constitution to replace the 1969 text with a more democratic system began in the early 1990s, with the end of the Cold War and democratic changes taking place elsewhere in Africa.

Ø  The single party system was ended in 1991, and the first presidential election took place in 1992. Calls for a comprehensive review of the 1969 Constitution intensified in the late 1990s and early 2000s, helped by the victory of the opposition National Rainbow Coalition (NARC) party in the 2002 general elections.

Ø  Official and civil society consultation processes led to the adoption of what became known as the "Bomas draft" constitution (after the location of the conference that adopted it).

Ø  However, substantial amendments were nonetheless made to this draft prior to a referendum in 2005, resulting in a split in the then ruling coalition. The Liberal Democratic Party faction of the government, led by Raila Odinga and supported by KANU led a successful 'No' vote against the amended Bomas Draft (called the Wako draft after the alleged mastermind of the changes).

Ø  The review of the Constitution stalled and negotiations over the adoption of a new text seemed deadlocked. A deadlock only finally broken by the intervention of the African Union through a mediation team headed by Kofi Anan, following the outbreak of serious post-election violence in early 2008.

Drafting of the Constitution of Kenya 2010

Ø  The Constitution of Kenya was the final document resulting from the revision of the Harmonized Draft constitution of Kenya written by the Committee of Experts.

Ø  The Harmonized draft was initially released to the public on 17 November 2009 so that the public could debate the document and then Parliament could decide whether to subject it to a referendum in June 2010.

Ø  The public was given 30 days to scrutinize the draft and forward proposals and amendments to their respective members of parliament, after which a revised draft was presented to the Parliamentary Committee on 8 January 2010.

Ø  The Parliamentary Select Committee (PSC) revised the draft and returned the draft to the Committee of Experts who published a Proposed Constitution on 23 February 2010 that was presented to Parliament for final amendments if necessary.

Ø  After failing to incorporate over 150 amendments to the proposed constitution, parliament unanimously approved the proposed constitution on 1 April 2010.

Ø  The proposed constitution was presented to the Attorney General of Kenya on 7 April 2010, officially published on 6 May 2010, and was subjected to a referendum on 4 August 2010. The new Constitution was approved by 67% of Kenyan voters

Gains achieved in the Constitution of Kenya 2010

Ø  An advanced Bill of Rights that among other things recognizes Socio-Economic rights of the Kenyan citizens. (Chapter Four).

Ø  The removal of age limit of 35 yrs to run for President. New draft allows people to run as long as they are of adult age. Article 137(b)

Ø  Right to recall legislators (Senators and Members of the National Assembly).(Article 104)

Ø  Representation in elective bodies has to effectively meet a gender equity constitutional requirement, namely that no more than two-thirds of members shall be from either gender in its make up. Chapter 7, Article 81(b)

Ø  Integrity Chapter, requires an Independent Ethics Commission to be set up that will monitor compliance with Integrity in all government institutions and make investigations, recommendations to the necessary authorities i.e. Attorney General and any other relevant authority.(Chapter Six)

Ø  An advanced Human Rights and Equality Commission that will also have power to investigate and summon people involved in Human Rights abuses within the government and with the public.(Article 252)

Ø  Equitable Sharing of resources between the National government and the County government through a resolution of Parliament. Chapter 12- Part 4.

Ø  An Equalization Fund to improve basic access to basic needs of the marginalized communities. (Article 204).

Ø  Any member of the public has a right to bring up a case against the government on the basis of infringement of Human Rights and the Bill of Rights – Article 23(1) (2). The courts and government institutions are bound to the Bill of Rights as per the Constitution Article 2(1); Article 10(1).

Ø  The Salaries and Remuneration Commission that is an independent entity and has the power of regularly reviewing salaries and related benefits of all State officers to ensure the Compensation bill is fiscally sustainable. Article 230(5).

Ø  Independence of the Judiciary is affirmed Article 160.

Ø  An independent National Land Commission created to maintain oversight and manage all public land belonging to National and County Government and recommend policy on addressing complaints from public, advise the National government on ways of improving National and county land management, planning, dispute resolution. Article 67.

Ø  Environmental rights are recognized under Chapter 5(Part 2)

Ø  Freedom of the media establishment from penalty on expression, by the State on any opinion and dissemination of media. Article 34. This is subject to the Article 33.

Ø  Devolution remains the centerpiece of the Constitution of Kenya and will bring about equitable development in the country by promoting equity

Challenges in the implementation of the Constitution

Ø  Critical pieces of legislation required to elaborate on key constitutional principles were passed by the largely unreformed 10^th Parliament. Most of these enabling laws, like the Leadership and Integrity Act were greatly diluted thus eroding the gains and intention (spirit) of the Constitution

Ø  Public interest litigation (PIL) that civil society groups and private individuals have resorted to in an attempt to streamline these laws to the spirit and text of the Constitution require resources that are limited.

Ø  The law required to harness public participation in the implementation of the Constitution and governance overall is yet to be passed, allowing the political leadership to get away with laws that do not meet the threshold of the constitution

Ø  The Constitution has established a completely new structure of government, complete with a devolved system of governance. Public participation in such a complicated governance structure is still hampered by lack of civic and political education

Ø  Majority of the Kenyan people are yet to embrace the values and principles of the new constitution and shift from old ways of conducting private and public affairs as espoused in the Constitution.

Ø  There is limitation of resources for civic and political education on the new constitutional order. High levels of illiteracy and ignorance among especially rural populations is a challenge in the implementation of the Constitution.

Way forward

Ø  Civic and political education should be intensified to harness public participation in the constitution implementation process and governance

Ø  Advocacy and lobbying should be intensified to generate the political will necessary to ensure laws passed meet the threshold of the Constitution

Ø  National and County governments, development partners and traditional civic education providers should prioritize and allocate more resources for civic and political education

Ø  The anticipated law on public participation should be passed as a matter of urgency to guide and enhance public input into the enactment and implementation of laws, policies and development plans

Ø  The public should engage the Judiciary with a view to lobbying it to review and remove legal costs involved in public interest litigation to make it possible to advocate for nullification of laws that undermine the constitution

Ø  Civic and political education should be integrated in the public and private education curriculum at all levels to enhance public consciousness

FOOD FOR THOUGHT FOR AFRICAN LEADERSHIP AND CITIZENS

Dear Honorable African Citizen and People of Good Will to our Beloved Continent of Africa,

I believe we are all called upon to envision and go ahead in our own mandates realise a Continent of Africa, Free from all mindset and material chains of slavery and imperialist, reconciled within herself, just in paying special attention to the poor and vulnerable within her own territorial borders, Peacefully Progressive and sharing the fruits of her pogress equitably to all her citizens regardless of class, ethnic affiliation, sex and race with guidance of common good, respect for human dignity and life. It is therefore through this that I reflected on our First African Father who lead The Great Country of Ghana to Independence and struggled to see the whole Africa Independent of the strains of Imperial Colonialists who looted the Resources Africa with Impunity and even currently continue to indirectly loot Africa through greedy and self-seeking leaders in the Continent.

Find below my reflection of Part of Ghana Freedom Day Speech. It is food for your thought in your day to day endevours to see this great continent blossom in the spirit of Reconciliation, Justice Peace and Development.

It is my prayer that God shall find an answer to the governance crisis in Africa through your small efforts in your specific mandates and portfollios. Lets sustain the debate and even do more than we talk in our responsible offices towards seeing A RECONCILED, JUST AND PEACEFUL CONTINENT OF AFRICA.

MAY GOD BLESS AND SALVAGE PEOPLE OF AFRICA, MAY GOD GUIDE AFRICA LEADERSHIP IN THE RIGHT PATH, MAY GOD BLESS AFRICA OUR BELOVED CONTINENT .

FOOD FOR THOUGHT FOR AFRICAN LEADERSHIP AND CITIZENS

I wish and share with Ghanaians’ a happy and prosperous Ghana Independence Day because Kwame Nkurumah pointed the following wise and courageous words of concern to Ghana and All then not yet independent countries including my own current Republic of Kenya in his book; Revolutionary Path, “Extract from Midnight Pronouncement of Independence: 5th - 6th March, 1957” London: Panaf Books, 1973, P. 120 - 121.

"At long Last the battle has ended. And thus Ghana, your beloved country is free forever. And here again, I want to take this opportunity to thank the chiefs and the people of this country, the youth, the farmers, the women, who have so nobly fought and won this battle. Also I want to thank the valiant ex-servicemen who have so co-operated with me in this mighty task of freeing our country from foreign rule and imperialism. And as I pointed out at our party conference at Saltpond, I made it quite clear that from now on, today we must change our attitudes and our minds. We must realise from now on, we are no more a colonial but a free and independent people. But also, as I pointed out, that entails hard work. I am depending upon the millions of the country, the chiefs and the people to help me to reshape the destiny of this country..."

And to the rest of the then countries that had not yet gained independence he sent the following message to the people of Ghana; being then the pioneer and the role model in Africa:

"We are going to see that we create our own African personality and identity; ... We again re - dedicate ourselves in the struggle to emancipate other countries in Africa, for our independence is meaningless unless it is linked up with the total liberation of the African Continent”.

This is the best time for African Countries' leadership and populace to reflect on whether Africa is really independent or yet to be independent given post-colonial bad-governance crises along with rent calling it faces that has deprived her of eminent human resources in the form of massive loss of human life, properties and human dignity degradation in the most of African countries. For example the case of Northern Uganda, Sudan, Ivory Coast next to the door to Ghana, Togo, Benin, Nigeria and Ghana itself in the forth coming election.

SO;

“Africa! Pick up your Pallet and Walk” (Message of Pope Benedict XVI; in Launching Second Synod for Africa 57 Propositions 2009 entitled Church in Africa in Service to Reconciliation, Justice and Peace: You are the Salt and the Light of the World; Mat.5:13, 14. We are called to be each others brothers' keeper and ensure Peaceful, Loving and Just Good Governed United Africa.

The Catholic Synod Fathers of Faith call upon Africa Citizens to embrace full freedom by uniting in the course of Reconciling, building Justice and Peace in Africa.

This cannot be achieved through institutional reform only but through individual efforts of each and every African Citizen inspired by change of Heart and Attitude in embracing total freedom from imperialist thinking in the spirit of Common Good and Respect for Human Life and Dignity at all levels of decision making process.



Ebenyo John Ewesit

ebewesit@gmail.com


Dedicated:

To the Late Kwame Nkurumah for his spirit that still yearns for total independence and Unity for Africa from direct and indirect oppression that ruins the leadership and socio-economic situation of African Affairs.

May His Soul Rest in Eternal Peace and May His Spirit Inspire all African Leaders and Citizens at large in this current situation of mixed African Governance System within the confusion of Democracy and Dictatorship ideals that spreads a culture of death instead of that of LIFE.

May God Bless Us, May God Bless Africa.

When will Kenyans say enough is enough to the Pestilence of Corruption?

By Patrick Ochieng *

Despite the uneasiness which has lurked at the backdrop of the struggle between the Office of the Prime Minister and that of the President, today the Coalition Government, in general, lacks affirmative and widespread social approval, is insecure, and has increasingly become an arena for politicians to score political points. Even to a casual observer, it is clear that the Coalition Government has lost much of its ballast, and represents a pale copy of the immediate post – election Anan led settlement outfit. The reason for this is simple, the leadership of the Coalition is mired in official corruption. As a firmly fixed cog in the corruption machine the President has with the finality befitting a hangman made it plain by his recent action that corruption is the chosen way of doing business. By vetoing the PM’s decision to suspend Ministers Sam Ongeri and William Ruto the President has endorsed our road to ruin and placed a bandage on cancer that is the bloated tumour of corruption. Verily, verily, verily, Kenya is now on top of the charts, very much within the brackets of countries that want to always show all and sundry that something is being done about corruption while they know it is mere bluffing.

I have not read a recent copy of Guinness Book of Records but I feel that it is near impossible to miss the inclusion of Kenya for the ingenuity of some of its citizens and allies in milking the country’s economy dry; if there is no such entry, then it will be a veritable sin of omission! The pervasiveness and the great depths of corruption in our beloved country have been as a result of what can best be referred to as “collective suicide”. It is not enough to say that corruption has been there for time immemorial; that is not an argument, and is the best exemplification of woolly thinking. Similarly, it is a militation against rigorous thinking to seem to be condoning the inability of the government to stamp out corruption by saying that “in any event, there are two parties to a corrupt deal”. We have institutionalized corruption in this country for a number of reasons - the leading of which are greed and moral decay. But the bottom line is really the lack of political will to eradicate corruption. There are other reasons, - these include mismanagement of publicly-owned resources as well as the economy generally, thus exacerbating the incidence of corruption.

Some years back - in fact in the late 80s, I came across a 1960s sociological study on Peru. Two things still remain etched in my mind. First, the study stated, as a finding, that if a rich businessman (or his corporation) paid taxes to the government, that is taxes payable in relation to the level of profitability, then all his colleagues/peers would think of him a fit candidate for a mental asylum. Second, if there was a traffic accident, the drivers of the motor vehicles involved thereof sorted out the matter with their fists. Peru must have since then taken some steps to come out from that state of anarchy. In Kenya we seem to be going through what Peru went through in the 60s. Our greatest problem, like is the case in many a poor nation in the so-called Third World, is that the state continues to be a major source of private wealth. This, to a great extent, explains the extremely degrading level of sycophancy at various levels of leadership in the public sphere. Similarly, corruption is rife in undemocratic regimes where the state machinery facilitates its clogging of the political, economic and social veins. Disclosure of its extent is treated as seditious, and silence is taken as golden in the circumstances. The following words, uttered by the famous Burmese freedom - fighter, Aung San Suu Kyi, are apt here. They are from “Freedom from Fear”:

“... It is not power that corrupts but fear. Fear of losing power corrupts those who wield it and fear of the scourge to it ... with so close relationships between fear and corruption. It is little wonder that in any society where fear is rife corruption in all forms becomes deeply entrenched”.

In this country, people started talking seriously, that is, after the high ¬- watermark of repression in the 1980s, about corruption, during the proceedings of the Judicial Commission appointed to look into the circumstances under which the late Foreign Minister Dr Robert Ouko was murdered. For the first time, important public figures went public that they were not corrupt at all and that they were as clean as cotton. It was truly, as the late Hungarian writer, Arthur Koestler, would have agreed, “darkness at noon” - something very much out of place, like the sun rising from the west. But it was also a healthy thing within the milieu of our political hygiene. The mere fact that Kenyans had for the first time agreed that there was corruption in the country was in itself the first step towards dealing with the vice. The other point, seemingly simplistic but of a cathartic effect, was the start of the understanding that corruption is a pestilence, a plague-indeed, a very corrosive agent of development, the sure passport to poverty. Today we are on the edge of a bottomless pit and it seems to me this situation will persist if we do not slough off the culture of fear which has brought us where we are. The fiasco between Kibaki and Raila with regard to the suspension of two Ministers named in corruption scandals is symptomatic of the tattered state of political governance that we find ourselves in. Integrity amongst our leaders has reached such a nadir that it is not surprising at all when a leader - in all seriousness - says that he fiddled with public funds to increase funding to his tribesmen. Leadership has descended to such low heights, some leaders would be better off selling charcoal or running a butchery somewhere. Corruption is a manifestation of bad governance. The bringing to an end of bad governance in a democratic society is clearly one way of fighting corruption on the postulation that corruption can only be effectively curbed if its root causes are established. That’s why I think the spat between the PM and the President should not relegate the drive to have a new constitution as I fear it may won’t to.

Raila Odinga the PM a rightist conservative to his fingertips, a point often lost sight of by the PNU establishment, which hate his guts, cannot be said to have overstepped his mandate by asking the two Ministers to step aside. Neither does his action to suspend them for three months make him a fire eating revolutionary as many commentators have wanted to make us believe. When one does not kowtow to the executive so as to get a clean bill of political correctness imperial presidents get really angry. With the many rip offs that Kibaki’s tenure has facilitated Kenyans should have come to the streets years back with one clear message: “Enough is enough.” Under Kibaki’s watch state finances and resources have been frittered away - left, right and centre - and all for the benefit of the politically correct, their minions and public officials who owe their jobs not because of merit but because they have a powerful godfathers somewhere.

This excessive bleeding of state resources must be staunchest if one looks at what has taken place with FPE funds, the Triton Oil saga, Anglo Leasing etc and really Kenyans have to do something fast-indeed, now. How, crying aloud, does one make of a leader who declares publicly that he is not going anywhere - that is, he is not going to step aside wapende wasipende. Again, and this is in respect of the curbing of the incidence of corruption, Ministers must give a good example to those under them. Corruption is weighing down the people of Kenya in the manner of a milestone tied round one’s neck because the top leadership has no regard whatsoever for notions of rectitude, probity and political morality. Here the nuggets of wisdom in Arthur M. Schlesinger’s preface to Dennis Wepman’s book on Kenyatta are apt here:

“Democracy does not eliminate emotion from politics; sometimes it fosters demagogy; but is confident that, as the greatest of democratic leaders put it, you cannot fool all of the people all of the time. It measures leadership by results and retire those who overreach or falter or fail.”

What we need to entrench is a tradition of liberal democracy, electoral competition among different parties for political power and training social movements and other institutions of civil society are all factors that make a powerful contribution to the continuous priority given to universal and free provision of key social services and economic benefits. Let me quote Aung San Kuu Kyi’s voice of hope. Insecurity is the root psychology of authoritarian regimes – a mistrust of one’s dignity, one’s self-worth, and therefore a mistrust of others. Let her speak:

“I think power comes from within. If you have confidence in what you are doing and you are shored up by the belief that what you are doing is right, that in itself constitutes power, and this power is very important when you are trying to achieve something. If you don’t believe in what you are doing, your actions will lack credibility. However hard you try, circumstances will appear.”

Indeed, the very essence of governance is that people are no longer content to be “managed” like commodities or pieces of industrial plant. Mr. President and the Rt. Hon Prime Minister, please take note.

* Patrick Ochieng is the Executive Director of Ujamaa Center.

PSC Sowing Seeds of Discord Again

We have been here before. In 2005, there was a big retreat in Naivasha where the then Parliamentary Select Committee (PSC) agreed on what was christened the Naivasha Accord. This document was a mutilation of the Bomas Draft Constitution, as had been agreed by majority of the delegates at National Constitutional Conference, between 2003 and 2004. At that Conference, Kenyans were resolute in the quest for a new order, but the politicians took away the ‘baby and threw it away with the bath water’. When they arrived in Nairobi, they had changed not only the draft but also their positions.

If the media reports being filed by national media houses are true, or close to what is going on in Naivasha, every Kenyan must be prepared for a bomber. If the recommendations to remove institutions that defend human rights, those that protect teachers or those that protect public land from the Revised Harmonized Draft, then we must be very wary. If the equality and non-discrimination provisions and the bill of rights have been interfered with, we should be very afraid. If PSC has overstepped their mandate, then we must be ready to salvage this process.

But we have been here before. How would you entrust wolves to protect your sheep? As the genius Albert Einstein often remarked: “lunacy is the ability to do the same thing over and over again but expect different results”. Kenyans must wake up to the reality that the real enemies of the Kenya’s search for new systems and structures are some few people they elected and shed blood for in the chaotic 2007 elections. Of course, other enemies behind the scenes are real interests of shadowy business elite; corrupt and callous class of political speculators; and of course, the big transnational and multinational companies that milk Kenya dry.

So, as many Kenyans would ask: “what is the way forward?” We propose five options: first, let us await the report of the PSC and read it. The report should be out by end of this week. We must interrogate it, and prepare for a serious battle with the PSC if they have recommended mutilation of the Draft. Second, we must take the bold step and state from the rooftops that our country should and must be run on the principle of rule of law. The law, Constitution of Kenya Review Act, only asked PSC to build consensus on contentious issues. Thus, since the Committee of Experts (CoE) identified four issues (executive, devolution, legislature and transition), where some aspects are also contained in areas such as public finance and some schedules, the PSC had no business opening up areas that did not have contention such as bill of rights, land or proposing deletion of constitutional commissions.

Third, we should visit the offices of the CoE with thousands of memoranda instructing them to disregard whatever PSC did that falls outside their mandate. Indeed, the CoE work seems to have been taken over by PSC. Who asked PSC to write a new constitution for us? No one! That must be stated categorically. Fourth, the CoE, unlike the defunct Constitution of Kenya Review Commission (CKRC), must be ready to take these public memoranda and use the law to defend their draft. The law is on their side, and they should not waive this opportunity to speak truth to power.

Finally, we propose that Kenyans from all corners of this country engage the entire August House, from the moment CoE redrafts the Final Draft for submission to the full House. Political and national battles are won if the people who stand to gain from a new order agree that some few people cannot take over a national project of all Kenyans and plunge it into chaos as we watch. Already, there is simmering conflict amongst many groups who stand to loose from what PSC is supposedly proposing. Those groups must of necessity agree to have a common enemy, and as we overthrew the KANU regime in 2002, we must exercise our sovereign power and tell Parliament that they have only one option: to agree with what we hold dear. Let us stand on the rooftops and declare Kenya is ours, for our next generation, and all persons are equal as we march towards the new order.

END

______________________________
Tom Kagwe, J. P.

TJRC RELUCTANT TO ADDRESS ECONOMIC CRIMES

TJRC RELUCTANT TO ADDRESS ECONOMIC CRIMES

Let me be frank and state that I have serious reservations about the capacity of the Truth, Justice and Reconciliation Commission (TJRC) to make any significant contribution towards dealing with our murky past, or to reconstruct a new Kenya.

My first doubt stems from its timing. Truth Commissions are almost always the final piece of a transitional justice agenda; when conflict has ceased and major reform has taken place. Yet, Kenya has not witnessed any substantial transition that would indicate that we have turned the corner and are now ready to deal with the devils of the past. Truth be told, many of these rascals are still very much around, with the chair of the Commission himself having faithfully served the disgraced Moi regime.

My final reservation about the TJRC concerns its interpretation of its mandate. While the Act allows the Commission considerable space to investigate beyond the traditional civil and political violations, it is now emerging that the Commission will limit itself to these confines and not give proper emphasis to socioeconomic violations.

This is best illustrated by the vacant positions advertised by the TJRC in last week’s press. Twenty five positions need to be filled but only one place is set aside for directing investigations. No vacancies are available for experts in assets recovery, fraud, land matters or reparations, but lots of jobs are on offer to lawyers, logisticians and ICT experts. A proper truth commission needs experts in areas other than law to avoid the trap of legalism that has hindered most truth commissions.

The much lauded Truth and Reconciliation Commission (TRC) in South Africa never looked at grand corruption nor concerned itself with the redistribution of wealth. The TRC report admitted its limitations when it stated ‘the consequences of human rights violations cannot be measured only in the human lives lost through death, detentions and disappearances, but in the human lives withered away through enforced poverty and other kinds of deprivation’.

In Kenya we know there is a clear link between grand corruption, kleptocracy and the endemic poverty of the majority of our people who live closer to death than to life. In other words the pain of millions of Kenyans is a result of the gain of a few dozen villains who looted the country’s coffers and who must now be held accountable.

South Africans may have discovered and acknowledged the truth about apartheid – if there was any doubt about its excesses in the first place – but no real reconciliation has taken place because the economic crimes have not been addressed. Appallingly, the victims of apartheid were granted just a few hundred dollars each as reparations for their suffering. The TRC did propose that beneficiaries of the Apartheid regime should pay a ‘wealth tax’ but that recommendation was ignored by the ANC administration.

Yet, the 55,000 registered members of the Khulumani Support Group in South Africa are currently suing 23 corporations like Barclays Bank, Ford Motors and IBM in a New York Court for their role in benefiting from an Apartheid regime that had been outlawed by International Law. They rightly claim that the apartheid system relied heavily on the large corporations’ financial and logistical support. This seems the last hope of reparations for the victims of the criminal apartheid system.

The TJRC Act permits conditional amnesty for gross human violations and economic crimes providing that full disclosure is made. Article 34(4) (b), moreover, states that restitution will be a requirement for amnesty for economic crimes. Note, that it does not require full restitution nor mention cumulative interest on top. Worse still, restitution is not even defined in the Act. We will surely end up with mere tokenism with regard to restitution and recovery of stolen assets.

Stolen African assets are equivalent to half of the continent’s external debt, while KACC has claimed that there are still $3billion of looted Kenyan cash in foreign banks. Kroll Associates were hired by the Narc regime in 2003 to investigate these crimes but were later unceremoniously fired when they discovered the truth of Goldenberg and Anglo Leasing.

Truth Commissions are established to reconceive society, yet that is not possible without addressing the redistribution of wealth, land and property and recovering stolen assets. Truth Commissions must also be victim centred. In an impoverished country like Kenya any reparations programme that does not include compensation, restitution and rehabilitation will fail the victims.

I see no possibility of reparations for Kenyan victims unless looted wealth is recovered and used to compensate them. Put another way any talk of amnesty must be based on asset recovery that then becomes a source of reparations. But are TJRC up to the task?

Gabriel Dolan gdolan54@gmail.com