THREE JUDGE BENCH TO HEAR CASE AGAINST THE KENYAN TRUTH JUSTICE AND RECONCILIATION COMMISSION (TJRC) CASE IN THE HIGH COURT NUMBER ONE – BEFORE JUSTICES MWERA, OKWENGU AND WENDOH, AT AT. 11.00 A.M. TUESDAY 16TH MARCH 2010
Mar 16th, 2010 by Mars Group Kenya
PRESS RELEASE
THREE JUDGE BENCH TO HEAR TJRC CASE IN THE HIGH COURT
The case filed against the Truth Justice and Reconciliation Commission (TJRC) will be heard in the High Court on Tuesday and Wednesday 16th & 17th March 2010. The case is defining in that following the setting up of the commission last July by president Mwai Kibaki it has never settled down to work nor has it been accepted by the public.
It will be remembered that last January when the commission attempted to introduce itself to the people of coast province it experienced two weeks of rejection, walkouts and boycotts. Again last week when the commission chairman left his offices at Westlands, he found himself alone at Kamiti prison accompanied only by the commission executive director, Ms. Patricia Nyaundi talking to prison staff and prisoners. This was odd because the quorum for the commission to conduct business is six commissioners.
Ten applicants who include four former MP’s have filed the case against the TJRC. They are seeking orders to stay the proceedings of the commission and removal of the Chairman Mr. Bethuel A. Kiplangat until the TJRC Act is amended to facilitate a proper TJRC to be set up which must include the period before independence in 1963.
The commission also has several commissioners who are unacceptable to the victims of a long line of human rights abuses perpetrated by current and past regimes. the act proposes that only cases which have arisen between 12th Dec 1963 and 28th Feb 2010 can be heard.
The applicants protest that there are numerous cases, which need and deserve attention before 12th December 1963 and are being excluded for no justifiable reason. Under section 26 of the Constitution of Kenya (amendment) act of 1964 which was assented by President Kenyatta in 1964, the independence Kenya government succeeded to “all rights, liabilities and obligations of;
(A) Her Majesty in respect of the government of Kenya….. and shall on 12th December 1964 be rights and liabilities and obligations of the government of the republic of Kenya.
They also contend that cases of abuses and victimisation which have arisen in the last two years are being excluded when thousands of victims abound.
The applicants argue that excluding the two periods amounts to discrimination against the victims which is forbidden under section 82 of the constitution of Kenya. the applicants argue further that the TJRC is treating Kenyans unequally by bestowing opportunities on a section of society while denying the same to other Kenyans.
They also take issue with the fact that there are numerous statute laws that should be amended before a truthful and just process could be put in place. There are laws in place, which at present prevent Kenyans from accessing justice from TJRC. Some of these laws protect, prevent, criminalize or allow certain acts to be done officially which militate against the setting up of a truthful TJRC. These laws include:-
- i. the constitution of Kenya which still allow detention without trial or incarceration for up for up to 28 days under the pretext of investigations.
- ii. the preservation of public security act, which is a colonial statute put in place in 1960. it was removed in 1963 and reinstated in 1966 to date.
The statute allows for detention in peacetime and has been abused such that some Kenyans have been detained out of business rivalry, academic disputes or to just heighted political temperatures so that those in power can retain the status quo.
Other statues which require amendment are:-
[1] the land titles act 1908; which gave freehold titles to foreigners along the coast and continues to uphold them to this day.
[2] the indemnity act which was enacted in 1974; to prevent claims being made against the government following the 1963-1967 state of civil war in north eastern province.
[3] the forfeiture of lands ordinance 1953; this act was used to confiscate land from Kenyans who were deemed to be disloyal to the colonial government. Under this Act lands belonging to over 4000 Kenyan freedom fighters in central province and in urban areas was expropriated and has never been returned to the owners or compensation paid to them.
[4] the official secrets act; this act keeps government papers, records, maps and documents secret unnecessarily while foreign colonial archive have easy access to the same secrets.
[5] the protected place act cap 204; this act protects places like nyayo house torture chambers and other hidden torture places. if the government has accepted and agreed to a TJRC process, why does it not come out clean and reveal all those places by repealing the act. The government should also come out with its list of those people whom it accepts have been victims of human rights abuses instead of keeping the list secret.
[6] the evidence act; certain sections like section 131 & 132 need amendment such that the minister will not is allowed to use a certificate which prevents records from being made available during disputes in court.
The applicants argue that before a truthful, credible and trusted process on TJRC can be put in place, a lot of preliminary work has to be done by the government to demonstrate a change of heart.
Hon. Wanyiri Kihoro
Advocate for the Applicants
