International Justice Monitor

A project of the Open Society Justice Initiative

Kenyan President and Chief Justice Apologize for Past Injustices

The President and the Chief Justice have publicly apologized in the past month for historical injustices Kenyans have suffered, the first such apologies by a Kenyan head of state or the head of the country’s judiciary.

The apologies fulfil one of the recommendations in the report of the Truth, Justice and Reconciliation Commission (TJRC). They also mark the first time any of the TJRC’s recommendations are being implemented since the commission completed its report almost two years ago. The commission submitted its report to President Uhuru Muigai Kenyatta in May 2013. It was later tabled in the National Assembly but to date it has not been debated or adopted.

Kenyatta made his apology during his annual State of the Nation speech on March 26 before a joint sitting of the National Assembly and Senate. He did not say he was doing so as recommended by the TJRC. Instead, he said he was making the apology as part of his constitutional obligation to report each year to Parliament on how his government is upholding national values.

Chief Justice Willy Munyowki Mutunga stated he made his apology in line with the recommendation of the TJRC. Mutunga made a general apology on March 7 during an event to commemorate the first political assassination in Kenya, the killing of socialist politician Pio Gama Pinto that remains unsolved. Later on he made a more specific apology to the people of Bungoma County and Nyandarua County while inaugurating new court buildings in those regions.

In his State of the Nation address Kenyatta acknowledged there had been political assassinations in the past, citizens had been detained without trial, and there had been political repression. He also acknowledged there had been massacres such as the one committed in Wagalla in northeastern Kenya in 1984. Kenyatta also said that there had been election-related violence in Kenya, “its most tragic expression” being the bloodshed that followed the December 2007 presidential poll.

“Collectively, these incidents have disunited us and held our people hostage to this tragic history by providing the foundation and rationale for cynical and destructive politics of hate and division,” Kenyatta told Parliament.

Kenyatta then talked about the government’s plans to help reconcile Kenyans that will focus on what he called restorative justice and creating a new government department to pay more attention to the marginalized parts of Kenya.

“Fellow Kenyans, the time has come to bring closure to this painful past; the time has come to allow ourselves the full benefit of a cohesive, unified and confident Kenya, as we claim our future,” Kenyatta continued after outlining some of the measures his government will be taking.

“My brothers and sisters, to move forward as one nation, I stand before you today on my own behalf, on behalf of my Government and all past governments to offer the sincere apology of the Government of the Republic of Kenya to all our compatriots for all past wrongs,” said Kenyatta.

“I seek your forgiveness and may God give us the grace to draw on the lessons of this history to unite as a people and together, embrace our future as one people and one nation,” Kenyatta concluded.

Before making the apology, Kenyatta told Parliament he had received a day earlier, on March 25, the final report from the Office of the Director of Public Prosecutions (ODPP) on cases related to the post-election violence. Kenyatta said that the report concluded it would be difficult to successfully prosecute any of the cases. Kenyatta said the reasons ranged from weak evidence, inability to identify perpetrators, and witnesses’ fear of reprisals.

“Nonetheless, the Office of the DPP recognises there were victims and recommends that these cases be dealt with using restorative approaches,” Kenyatta said.

The report is based on the work of a multi-agency task force appointed by Director of Public Prosecutions Keriako Tobiko in February 2012 to analyse case files that were opened during the violence that shook Kenya between December 2007 and February 2008. The task force was originally given a six months to complete its work. Tobiko set up the task force in response to public concerns that there were limited cases against suspected perpetrators of the violence. Kenyatta said the report from the ODPP stated that 6,000 cases were reported and 4,575 files opened.

In response to the report’s conclusion that the post-election violence cases can be dealt with using restorative measures, Kenyatta announced that his government planned to set aside 10 billion shillings. He said this money would be disbursed over a three-year period. He also said that he had formed a new government department charged with “strategic initiatives” targeted at marginalized regions and people in the country. Again, Kenyatta did not refer this action to the TJRC report, but it is in line with the recommendations in that report.

When he spoke at the 50th anniversary of the assassination of Pio Gama Pinto, Chief Justice Mutunga was clear he was making a public apology in line with the recommendation of the TJRC. He noted in his March 7 speech that one of the reasons the TJRC was set up was to investigate assassinations of individuals such as Pinto. Pinto was a member of Parliament and a close ally of the vice president at the time he was assassinated.

Mutunga observed that the commission’s recommendations were “not taxing.” He highlighted three of them. First, all reports and materials of investigations into past assassinations should be made available to the public through the National Archives. Second, the President apologizes to the families of those assassinated and the nation as well as apologize for the past governments’ inability to adequately investigate these assassinations. (Mutunga’s speech was made 19 days before Kenyatta offered his public apology.) The third recommendation of the TJRC Mutunga referred to was the government making public memorials to commemorate heroes such as Pinto.

“These are the things we have been unable to do as a country – and it is our collective shame that even this little seems beyond our capacity,” Mutunga said.

“I hasten to add that the TJRC recommends an apology from the Judiciary for its failure to protect the rights of Kenyans. Let me announce here our apology and our readiness to offer yet another apology when Parliament performs its duty by the report,” Mutunga continued.

Following his March 7 speech, Mutunga toured different parts of the country to inaugurate new court buildings. On two of those occasions he apologized for the judiciary’s shortcomings.

In Nyandarua County, Mutunga observed the region did not have a magistrate for 29 years. He said the last person to serve as magistrate died in 1985 and it was not until 2013 that another one was appointed. He said the new court building he was inaugurating at a town called Engineer was another step in correcting the past mistakes of the judiciary.

“The inauguration of this court is the Judiciary’s statement of apology for the historical neglect the residents of Nyandarua County have suffered over the years. They have had to cover very long distances on extremely bad roads to reach the courts in Nyahururu and Naivasha,” Mutunga said.

Later on March 25, Mutunga made another apology in western Kenya in Bungoma County. He noted that it was in Kimilili town in this county that one of Kenya’s freedom fighters had been unfairly judged and convicted by the colonial and post-independence judiciary.

“The courts in the colonial era and after did not always stand up for the rights of the people. The Judiciary wishes to apologise for not protecting the rights of freedom fighters like Elijah Masinde,” Mutunga said. He said the judiciary had decided it would be a fitting tribute to Masinde’s fight for justice to have the courtroom where he was tried converted into a museum named after him. Mutunga said the judiciary had already discussed the proposal with the county government and would be also talking to the National Museums of Kenya.

The Truth, Reconciliation and Justice Commission was formed after the post-election violence. It began its work in 2009. Its mandate was to investigate violations between the day Kenya got independence from Britain, December 12, 1963, and the day a deal was signed to end the post-election violence, February 28, 2008. The commission was supposed to submit its report within two years of being formed, but it suffered several delays.

And even after those delays, submitting the final report to Kenyatta was not a straightforward matter. The commission was originally scheduled to present its report to Kenyatta on May 2, 2013. That appointment was changed to May 21. In between those days, five paragraphs were removed from Volume 2B of the report dealing with land. Also removed from that volume of the report was the dissenting note of the foreign members of the TJRC. The three foreign members of the TJRC signed the other volumes of the report except Volume 2B. They later issued a statement explaining the reason for their dissension. That statement also included the missing five paragraphs.

The TJRC was made up of five Kenyan members and three foreign ones. This composition of the TJRC was agreed to by all involved with the three foreign members seen as necessary to guard against undue influence being exerted on the commission as it investigated sensitive issues. The foreign members of the TJRC were Zambian High Court judge Gertrude Chawatama, Ethiopian diplomat Berhanu Dinka, and American law professor Ronald C. Slye.

The four volumes of the TJRC report are available here.

2 Comments
  1. Thanks for this Tim. I did not realize that the Chief Justice had also apologized. Thanks for publicizing that.

    If readers want to download full copies of the Report — including the version before it was censored by the President’s office — and the text of the dissent of the international Commissioners, they can be found at http://digitalcommons.law.seattleu.edu/tjrc/.

  2. The five paragraphs that were removed from Volume 2B of the report dealing with land showed exactly how the TJRC was untrue, unfair and unbalanced in its entire report. If you raze a section of a report it becomes questionable to be true even if it was a small section. They should have been truthful to Kenyans just like the name suggested “TRUE, Justice and Reconciliation Commission (TJRC).

    Thanks Tim for the Info.

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