Commentary

How Should Kenya Confront the Past?

Ten Lessons for the Truth, Justice & Reconciliation Commission

George Santayana warned, “Those who cannot remember the past are condemned to repeat it.” As a means of confronting her past, Kenya’s forthcoming Truth, Justice, and Reconciliation Commission (TJRC) is a judicious middle way between two flawed alternatives: Nuremberg-style “victor’s justice” and simply sweeping history under the carpet.Over the past decade, countries as dissimilar as South Africa, Northern Ireland, and Nigeria have employed commissions to strike a balance between the claims of truth, justice, and political stability. What lessons do they hold for those conducting Kenya’s investigation?

Lesson 1. There are two kinds of truth.

The first, micro-level truth is the victims’ truth, which provides questions as to why something happened, and by whom. The second, macro-level truth is the perpetrators’ truth, which provides the answers. As it unearths both kinds of truth, the TJRC may enable respective ethnic, tribal, and political foes to understand, and thereby to tolerate, one another better. As such, the TJRC’s success or failure will play a critical role in Kenya’s future.

Lesson 2. Truth is found in voluntary statements.

By offering amnesty to the perpetrators of politically motivated crimes in return for full confessions, South Africa’s Truth and Reconciliation Commission (TRC) incentivized large numbers to tell the truth. As in the South African case, Kenyan applicants should apply for amnesty individually and make full disclosure in public. Shame will be the most effective punishment. Victims who voluntarily testify should be accorded respect and recognition, which the South African experience suggests provides both better information and, importantly, the possibility of closure for victims.

Lesson 3. The goal is resolution, not retribution.

It is not possible to punish adequately all those who have inflicted suffering upon members of another tribe. Therefore, investigators must focus their efforts where they can do the most good. For example, two years ago Northern Ireland’s Historical Enquiries Team (HET) began an effort to bring resolution, if not legal justice, to the families of those 3,268 Protestants and Catholics who suffered “unnatural” deaths during the 30 years of the terror-ridden Troubles. The HET has six years to find satisfactory answers to as many of those deaths as possible.

Lesson 4. The issue of guilt and innocence is rarely clear-cut.

Uncovering the truth, and determining individual culpability, is both difficult and potentially divisive. The task proved insurmountable in formerly communist Eastern European countries, where large swathes of the population obliged the government over two generations. Accordingly, Kenyans must expect shades of gray to blur this seemingly “black and white” task.

Lesson 5. Amnesty is not a substitute for criminal justice.

The controversial issue of political amnesty is probably the most difficult that Kenya’s TJRC will face. South Africa’s TRC sensibly rejected wholesale pardons to ensure that amnesty was not dispensed cheaply. In fact, the TRC granted amnesty to only 17 percent of applicants because the commission concluded the remaining offenders had not told the whole truth.

Lesson 6. Making amends may require financial compensation.

Financial compensation for South Africa’s victims has been miserly: the TRC recommended compensation five times that provided by the government. Heeding that lesson, TRC Chairman Archbishop Desmond Tutu argues that without “restorative justice” (i.e. appropriate financial compensation) the aggrieved continue to consider themselves victims and reconciliation is harder to achieve.

Lesson 7. Avoid ethnic and partisan bias.

The TRC went to enormous lengths to lift the lid on the racist South African government’s unsavory activities. However, the ANC’s past activities did not attract the TRC’s interest to the same degree. Consequently, surveys found that most South Africans believed the TRC had polarized the races rather than promoted reconciliation. Kenya cannot afford the same mistake. Even-handedness in its uncovering of the facts is a prerequisite for widespread public acceptance of the TJRC’s findings.

Lesson 8. Do not allow the perfect to become the enemy of the good.

There is no perfect way (ethically, legally, or politically) of seeking truth, justice, and reconciliation. At times, difficult accommodations will need to be made between these competing principles. That is not a reason to shirk the test, as the alternative is failure.

Lesson 9. The political establishment must stay the course.

The Nigerian human rights panel established in 1999 to hold public hearings into three decades of distasteful political history worked long and hard but failed in its task. Few truths were uncovered and, hence, little progress was made in reconciling the country’s political factions. In truth, Nigeria’s political leadership was far more interested in apportioning blame than seeking the facts. Kenya’s TJRC can work, however, if politicians do not exploit it as a prop to embarrass their rivals.

Lesson 10. There is no turning back.

Once a government decides to investigate historical grievances, it lays down a marker both for itself and for all future governments. Unavoidably, the TJRC’s activities will encourage the Kenyan people to judge their political leaders by a higher standard of behavior than in the past. The democratic bar has been raised and it cannot be easily lowered again.A successful TJRC is necessary to turn the historical page. If it does its job well, the TJRC will build a foundation for political reconciliation in a country that can still live up to its democratic ideals. Archbishop Tutu reminded us a decade ago that, “The truth hurts.” The TJRC’s challenge is to minimize its pain while maximizing its healing powers.

Patrick Basham, the director of the Democracy Institute, is an adjunct scholar at the Cato Institute.