A Discussion with Major General Ahmed Sheikh Farah, Member, and Bethuel Kiplagat, Chairman, Truth, Justice and Reconciliation Commission, Nairobi, Kenya

With: Ahmed Sheikh Farah Berkley Center Profile Bethuel Kiplagat Berkley Center Profile

July 7, 2010

Background: As part of the Religion, Conflict, and Peacebuilding Fellowship, Consuelo Amat interviewed Major General (retired) Ahmed Sheikh Farah, member of Kenya's Truth, Justice and Reconciliation Commission (TJRC), and Bethuel Kiplagat, chairman of the TJRC. In the interview, Farah and Kiplagat go into the history behind the Truth, Justice and Reconciliation Commission and its role in preventing violence in Kenya.

Major General Farah, could you tell me how the Truth, Justice and Reconciliation Commission came about?

Ahmed Sheikh Farah: There is so much history here, and I would like to go back to Moi’s regime to be able to explain the origins and importance of the TJRC. In 1988 we had a single party system, which was [Daniel arap] Moi’s KANU, and it was effectively a dictatorship. There was a slight opening in 1992, as a multiparty system started to emerge, but the tribal character of the new political parties undermined this transformation. Moi was re-elected in the first multiparty elections in December 1992 because the opposition parties were extremely divided and unable to work together. There was no peace in Kenya. The ethnic dimension in politics grew bitterly strong and in 1997 the same occurred: Moi was re-elected, and the opposition remained ethnically divided. In the run-up to the 2002 presidential elections, Kenyans learned their lesson, and tribes united to elect Mwai Kibaki. A memorandum of understanding was signed by the two major parties, the National Alliance Party of Kenya and the Liberal Democratic Party, which gave way to a historic cooperation between the two parties called the National Rainbow Coalition (NRC). The NRC’s aim was to elect Mwai Kibaki, a Kikuyu, but the memorandum of understanding was intended to give confidence to other tribal groups that they would be treated fairly and given positions in the government.

In 2003, a new draft constitution was in the making. The most controversial issue was the authority of the presidency and to what extent the power would be spread to other branches. Kibaki watered down the draft that ultimately went to popular referendum, and this enraged the coalition that had agreed on those provisions in the Bomas meetings. The National Rainbow Coalition was at the brink of collapse as many of its members felt that Kibaki had reneged on the memorandum of understanding. The result was that the pro-Kibaki wing of the government supported the proposed constitution, and the opposing wings united against it. With a divided government, and a strong No campaign, the proposed constitution was turned down in the 2005 referendum. As a consequence, Kibaki proceeded to lay off his cabinet, and the Rainbow Coalition finally collapsed.

This set the stage for the contested 2007 presidential elections. Even though it is very difficult to prove, I think that Raila Odinga really won. There was rigging on all sides, people were disenchanted with the outcome, tired of greedy politicians and broken promises and vulnerable to ethnic tensions. The situation degenerated, and the consequences were catastrophic: approximately 1,300 people dead, hundreds of thousands displaced, and burnings and lootings took over the cities. [This graph] illustrates how I view the situation: the level of hope in Kenya (the y-axis) has varied wildly across time (x-axis) and we are now—a few weeks before the 2010 constitutional referendum—with high hopes and plenty of uncertainty.

In December 2002 Kenyans had high hopes and were feeling triumphant given the end of Moi’s dictatorship and the dawn of a newly elected president with a coalition of political parties. From there it went downhill with the breaking up of the coalition, a failed referendum, and ultimately ending in chaos in the 2007 elections. Since then, and in large part thanks to the Annan-led ceasefire and power-sharing agreement, Kenyans are today more optimistic. The high hopes today are due to the upcoming constitutional referendum. If the referendum fails to pass we will start going downhill again, but not necessarily to the chaos of 2007. If the referendum passes the hopes will remain high and will set the stage for the 2012 presidential elections.

How does the Truth, Justice and Reconciliation Commission fit in this picture of maintaining high hopes and preventing another tragedy?

Farah: The TJRC’s mandate is to investigate all the major human rights violations and fund misappropriations. In that sense we have a broad mandate and can look at the major social, political, and economic violations that have occurred in Kenya since independence. After the fact-finding stage, we will make recommendations to the government, along with an implementation strategy for parliament and other decision-makers. This task amounts to re-documenting the history of those most marginalized in this country, and it will require hiring researchers and historians for the two-year span of our mandate.

Not only will we have teams of researchers and writers, but we will also hold several public hearings where people can participate in the reconciliation process “à la South Africa.” The major distinction between the TJRC and South Africa’s Truth and Reconciliation Commission is that there will be no amnesty granting for major crimes. We may be able to recommend amnesty for minor crimes, but the general rule will be prosecution, justice, and accountability. This is why our commission has the word “justice” in it. We believe strongly in the importance of a credible judicial system. [Prime Minister] Raila Odinga in 2007 and 2008 said that he could not trust the courts in Kenya, leading the way for violent demonstrations and taking justice in the people’s hands. We cannot afford cynicism of our courts—it is recipe for disorder and violence.

Mr. Kiplagat, could you elaborate on where the work of the TJRC stands today, especially during this sensitive time of the constitutional referendum?

Bethuel Kiplagat: First, I want to point out that regardless of whether or not the referendum passes, the TJRC stands, and we will continue to do our vital work. Beyond the two years of our mandate, there remains the more permanent institution called the National Cohesion and Integration Commission, which will endure the 2012 presidential elections and beyond.

With relation to where our work stands today, we are in the middle of our fact-finding mission, and I believe that it is very important that we continue during this politically sensitive time. We have hired dozens of experts, historians, and researchers, and we are well underway with our research. The TJRC is another reason why Kenyans stand optimistic today: people will finally have a more complete record of their past and the ability to bring to justice the perpetrators of the most heinous crimes that this country has seen.

What is your version of the allegations against you regarding your past during the Moi regime and what that says about your current position as chairman of the TJRC?

Kiplagat: I am well aware of all the allegations against me, and I will repeat what I have said to everyone else: I stand behind my innocence, and I have opened a case in court for them to investigate my past. I am not avoiding accountability and would be happy to prove my innocence in a court of law. I am proud of the work of TJRC, and I think that these allegations will pass, and we will be able to continue our work undisturbed. We are still coming to work every day and realizing the mission of the TJRC.

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