1,133 is not just a number

GoK borken promises

Broken promises in the wait for the reparations billions

16 April 2018 - 13:04

Survivors and activists who have been quietly nudging President Uhuru Kenyatta for the past three years to make good on his promise to bring to life the Sh10 billion Restorative Justice Fund say they are tired of being taken round in circles. In March 2015, President Kenyatta, while making a full-throated apology to victims of past wrongs during a State of the Nation address, announced that he had directed the Treasury to create a fund to compensate survivors.

"Notwithstanding the recommendation of the TJRC report, I have instructed the Treasury to establish a Fund of 10 billion shillings over the next three years to be used for restorative justice. This will provide a measure of relief and will underscore my government’s goodwill,” said Kenyatta.

Nothing has come of the President’s directive except obfuscation (“The government is still putting in place mechanisms to operationalise the fund,” said Michael Ndungu, the director of national values and national cohesion in the Office of the President, in 2015) and mealy-mouthed excuses about bureaucracy (“I must take some responsibility including my colleagues at the Treasury because what followed was a bureaucratic process in which there was lack of clarity on where the funds would be placed and how they would be administered,” said former Attorney General Githu Muigai in 2017.)

A measure of the glacial pace of the implementation of the President’s vow can be gleaned from the Attorney General’s keynote address at the International Day for the Right to the Truth concerning Gross Human Rights Violations and for the Dignity of Victims last year. He leaned heavily on how the passing of the draft Public Finance Management (Reparations for Historical Injustices Fund) Regulations, 2017, would implement the reparations framework proposed by the Truth, Justice and Reconciliation Commission of Kenya (TJRC) report.

At this year’s ceremony, which was held on the grounds of the Kenyatta International Convention Centre (KICC), the AG was a no-show. He was instead represented by Mary Wairagu. The AG’s absence did not hinder survivors and activists from expressing their disappointment at the conspicuous lack of progress in setting up a policy framework for reparations despite many fine speeches over the years. 

Speaking with the urgency of hard-won experience, Jacqueline Mutere of Sexual Violence Survivors Movement said she and the men and women she represents from Mathare, Ngomongo, Dandora, Kawangware, Kibera, Mukuru and others from far-flung corners of the country have “walked a long journey since 2015” but that the day had come for the government to hear some uncomfortable home truths.

“We, the people; we, the women and the men of Kenya, hereby declare that the day has come for truth,” she said.

“We are here to remind our government that we exist. To remind them about the violations meted on us and our bodies and hence [demand] just compensation for the harm done,” said Mutere, adding, “Our bodies have been used as a war zone and this must end.”

Mutere spoke pointedly about what the AG had promised survivors last year.

“One year later from the day the Attorney General promised that by this time this year we would already have been compensated, this has not been done,” she said.

“Why are the reparations policy and regulations not in place?” she asked and then volunteered this answer: “It is a choice to disregard women. It is a choice to disregard sexual violence. It is a choice to disregard rape. It is a choice to despise our lived experience if for nothing else but to feed and protect egos.”

Mutere said that the government’s failure to keep its promises to survivors was holding Kenya back from closing the book on a blemished chapter in the country's history:

“The negligence is for impunity to keep reinventing itself and to circumvent justice. We ask for just compensation for violations committed against us. We have an opportunity to cleanse and heal this nation,” she said.

A victim of poll-related sexual violence herself, Mutere said she and other survivors would be staying the course until the government paid up what they are owed:

“We simply cannot be wished away,” she said, “We are not from a lesser god.” 

Most of the speakers didn’t mince their words. None more so perhaps than Gertrude Angote, the Executive Director of Kituo Cha Sheria (Legal Advice Centre). Running with the theme of the day, Angote spoke plainly about being plagued with feelings of hopelessness on behalf of survivors after seeing their hopes of receiving some measure of compensation dashed over and over again.

“We have walked as Kituo [Cha Sheria] a journey with numerous victims. It is a very lonely and hopeless journey,” she said.

“It is very hopeless especially today as we commemorate the international day for the right to truth. It is very critical that as a country we relook, rethink and ask why is it that we have a TJRC report with recommendations and findings, we have the president of Kenya saying you have a fund in place for victims and for people whose rights have been violated but yet as a country we can never practically put this into meaningful use for victims,” said Angote.

Angote wasn’t about to apologise for being in truth-telling mode.

“We have to come to a point where we just have to say it as it is,” she said.

“Who among us can say that they have seen a police officer being arrested because he sexually violated a woman in Mathare?” she posed.

Despite the excellent work by many civil society organisations for survivors, she added, the responsibility for compensating them lies with the government.

“The work we have been doing with these women is very hopeless because as a civil society [organisation], we can’t guarantee them hope any more. Hope lies in justice. Hope lies in the truth. Hope lies in reconciliation,” she said.

“What are the mechanisms and what are the systems that we have in place as a country to guarantee the victims of sexual and gender-based violence hope? If we cannot prosecute a policeman, then where is the hope? If we cannot give reparations to those victims, then where is hope? As civil society, we give what we give. But without the structures set up by the government, with the goodwill of the president because he has demonstrated it, we are not able to continue guaranteeing hope for these women,” Angote explained.

Angote ended with a plea to both the government and the people of Kenya to stand up for victims in their hour of need:

“Please set up the reparations fund in order to compensate these women. In order to redress them. In order to give them dignity. In order that they don’t have to hate the children who they gave birth to without knowing who their parents are because they were raped.”

“We have to get a bit angry as Kenya. Not in a bad way that would lead to fighting. No. But we have to try to use our little spaces to ensure that that money, those policies and those structures make a real difference in the lives of these women who have been violated.”

Kagwiria Mbogori has had a front-row seat to the ups and (very many) downs that have characterised the struggle to ensure victims of Kenya’s historical injustices receive compensation. As chairperson of the Kenya National Commission on Human Rights (KNCHR), Mbogori -- with her famous shock of white hair -- is a ubiquitous presence on local television screens and an outspoken champion of the downtrodden.

Truth and justice are lynchpins of lasting peace, she begins her remarks: “As a commission, we believe that societies and individuals are entitled to know the truth about mass human rights violations. People cannot be lying dead in graves. We cannot be counting bodies without explanation. We must seek accountability and we must not tire in this search,” she said.

“The commission believes that acknowledgement of harm suffered by victims is the beginning of true national healing. There can be no reconciliation without justice. Therefore, as a country, we must stand up and fight against silence on human rights violations and brutality. We cannot afford to be silent. We cannot allow ourselves to be muzzled and gagged. We must speak truth as we see it,” she adds.

“Our commission reminds the state that reparations have not received considerable political goodwill even though some politicians, family members and even communities have suffered gross human rights violations.”

“Until now efforts towards administration and disbursement of this fund to victims and survivors have not been realised three years down the line. From 2016, the national commission alongside the office of the Attorney General and many other actors in the transitional justice field worked to develop the regulations on reparations and forwarded the same to the honourable office of the Attorney General.”

“As a commission, we call upon the government to immediately operationalise this fund by adopting the regulations that shall guide the payments to victims and survivors.”

“KNHCR is aware that parliament is yet to legislate reparations as required by the TJRC report. Consequently, there is no law in place on reparations for victims of historical injustices. Our commission and organisations forming the Kenya Transitional Justice Network are grateful for the support from the office of the Attorney General so far in setting up the framework. Their joint work has resulted in the draft reparations regulations. We have seen the value of this kind of collaboration. We now call upon the Attorney General’s office to move forward to develop a policy on reparations. We shall join them in such efforts.

To applause, she added:

“We also call upon his Excellency the president of Kenya to ensure that no form bureaucracy from his office or any state department delays reparations for victims in Kenya anymore.”

“Failure to operationalise the reparations framework by the state is in effect a move to lengthen the suffering of survivors and the families of the victims.”

Mbogori also had a request to make to county governments as regards reparations and memorialisation:

“Our commission calls upon county governments to find a way of supporting reparations in their own way. KNHCR calls upon county governments to make budgetary allocations for memorials in their counties where massacres took place in order to remember the survivors and to stand as a symbol for “no more”.”

Referencing a recent personal story, Mbogori said that it was unconscionable that even survivors of state violence who used their own resources to go to court and were awarded damages have not been paid to date:

“My friend the late Sheikh Bashir was calling me just weeks before he died asking me to shake up the office of the Attorney General to see whether he can get his reparations. Unfortunately, he died before we were able to get anything for him. He is not alone.”

Here is the gist of what Mary Wairagu, who stood in for the AG, had to say in her keynote address:

“I know I am under pressure to give a timeline for when we will start paying. If I give a date you will hold me to it the next time. But I estimate that with the kind of policy that we have in mind, I will give it a maximum of one year. I am seeing the reactions on people’s faces even as I speak, so let me say one year, plus.”

The unspoken codicil? “It could be a year before we start paying survivors. Or it could be two or three. Point is, we are working on it. Probably.” 

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