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

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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