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A
Volume I ChapterON E
REPORT OF THE TRUTH, JUSTICE AND RECONCILIATION COMMISSION
K E N Y A
Volume I
REPORT OF THE TRUTH, JUSTICE AND
RECONCILIATION COMMISSION
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Truth, Justice and Reconciliation Commission, 2013
This publication is available as a pd on the website o the Truth, Justice
and Reconciliation Commission (and upon its dissolution, on the website
o its successor in law). It may be copied and distributed, in its entirety, as
long as it is attributed to the Truth, Justice and Reconciliation Commission
and used or noncommercial educational or public policy purposes.
Photographs may not be used separately rom the publication.
Published by Truth Justice and Reconciliation Commission (TJRC), Kenya
ISBN: 978-9966-1730-3-4
Design & Layout by Noel Creative Media Limited, Nairobi, Kenya
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His Excellency
President o the Republic o Kenya
Nairobi
3 May 2013
LETTER OF TRANSMITTAL
By Gazette Notice No. 8737 o 22 July 2009 and pursuant to section 10 o the Truth, Justice and
Reconciliation Act No. 6 o 2008, the undersigned were appointed to be Commissioners o the Truth,
Justice and Reconciliation Commission. The Commission was established with the objective o
promoting peace, justice, national unity, healing, reconciliation and dignity among the people o Kenya.
Having concluded our operations, and pursuant to section 48 o the Truth, Justice and Reconciliation
Act, we have the honour to submit to you the Report o our ndings and recommendations.
Please accept, Your Excellency, the assurances o our highest consideration.
Amb. Bethuel Kiplagat
Chairperson
Tecla Namachanja Wanjala
(Vice Chairperson)
Judge Gertrude Chawatama
Amb. Berhanu Dinka
Maj. Gen (Rtd) Ahmed Sheikh Farah
Pro. Tom Ojienda
Margaret Shava
Pro. Ronald Slye
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Table o Contents
Foreword ................................................................................................................................. iii
Executive Summary ............................................................................................................ vi
List o Abbreviations ....................................................................................................... xxi
CHAPTER ONE
Background to The Commission........................................................................................................... 1
Introduction ............................................................................................................................. 1
Historical Context.................................................................................................................. 3
The Road to Establishing a Truth Commission ............................................................ 6
Establishment o The Commission ................................................................................ 22
Management and Administration ................................................................................. 27
Operational Period.............................................................................................................. 36
CHAPTER TWO
Interpretation o Mandate .................................................................................................................... 39
Introduction .......................................................................................................................... 39
Core Concepts ...................................................................................................................... 41
Objectives and Functions o the Commission........................................................... 52
Temporal Mandate.............................................................................................................. 57
Subject Matter Mandate ................................................................................................... 62
Breadth and Complexity o Mandate ........................................................................... 70
Responsibility or Violations and Injustices ................................................................ 70
Amnesty ................................................................................................................................. 71
Other Relevant Aspects o the Commissions Mandate ......................................... 74
CHAPTER THREE
Methodology and Process .................................................................................................................... 79
Introduction .......................................................................................................................... 79
Civic Education and Outreach ........................................................................................ 81
Statement-Taking ............................................................................................................... 83
Memoranda........................................................................................................................... 88
Inormation and Data Management ............................................................................ 89
Research and Investigations........................................................................................... 94
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Hearings ................................................................................................................................ 96
Focus Group Discussions ............................................................................................... 116
Site Visits ............................................................................................................................. 118
Reconciliation .................................................................................................................... 119
Report Writing ................................................................................................................... 121
CHAPTER FOUR
Challenges in the Execution o Mandate ..................................................................................... 123
Introduction ........................................................................................................................ 123
Credibility and Suitability o the Chairperson ......................................................... 124
Financial and Resource Challenges .......................................................................... 144
Legal Challenges ............................................................................................................. 148
Lack o Political Will .......................................................................................................... 151
Conclusion........................................................................................................................... 154
Appendices Appendix 1A:Personal Proles o the Commissioners ...................................... 155
Appendix 1B:Management Team .............................................................................. 157
Appendix 2:List o Regular Sta................................................................................. 160
List o Interns and Data Entry Coders ............................................. 164
List o Consultants and Resource Persons .................................... 165
Appendix 3: Audited Statement o Financial Position or the Year2010-2011 and 2011-2012 .................................................................. 166
Audited Statement o Comprehensive Income or the
Years 2010-2011 and 2011-2012 ...................................................... 167
Cash Flow Statement or the Years 2010-2011 and
2011-2012.................................................................................................. 168
Appendix 4: Statement Form ...................................................................................... 169 Appendix 5: Children Statement Form.................................................................... 194 Appendix 6: Gazette Notice: Hearing Procedure Rules..................................... 198
Appendix 7: Ambassador Kipligats Statement on Resumption o Oce ...... 203
Appendix 8: Guide or Focused Group Discussions on the Nature and
Extent o Violations o Socio-Economic Rights and on
Perception o Economic Marginalisation ..................................... 207
Appendix 9: Advisory Opinion by the Commission on AdministrativeJustice ......................................................................................................... 214
Appendix 10: Aide Memoire ......................................................................................... 219
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Foreword
It has been a long journey. From the day o our swearing in on 3 August 2009, to the
handing o this Report to the President, we have experienced every emotion; rom joy, to
rustration, to exhilaration, to humility.
This Commission collected the largest number o statements o any truth commissionin history. With the tireless help o the over 300 statement takers we hired, and the more
than a hundred that were seconded to us by civil society organizations, we collected over
40,000 statements. It is diicult to discern the signiicance o this singular achievement.
While the statement taking orm was pronounced by international experts in the ield
as one o the best they had ever seen, we acknowledge that there is a wide variety o
detail and accuracy in the statements we collected. We also acknowledge that, as ar as
we are aware, we deployed by ar the largest number o statement takers o any other
truth commission, thus perhaps contributing to the large numbers o statements we
collected.
What we can say with conidence, however, is that the record number o statements
collected airms our individual perceptions as we travelled the length and breadth o
the country: there is a hunger, a desire, even a demand or the injustices o the past to
be addressed so that those individuals who have borne the brunt o those injustices,
and the nation as a whole, may move on. The 2003 Task Force on the Establishmento a Truth, Justice and Reconciliation Commission reported that over 90 percent o
Kenyans wanted a truth justice and reconciliation commission. We are not in a position
to conirm that percentage, but we can with ull conidence, on the basis on our
collective experience, report that the vast majority o Kenyans not only wanted such
a commission, but were willing to spend a signiicant amount o their own time, and
sometimes money and other resources, to participate in a truth-telling process.
This is a Report. It is written with words, and printed on paper or converted intoelectronic bits and bytes. Yet it is the product o, in some cases literally, the blood,
sweat and tears o the stories that were told to us as we travelled the country. The
written word, no matter how poetic, cannot convey accurately the passion with which
people demanded to tell their stories and the integrity and dignity with which they
related their experiences. It cannot convey the silence, the tears, and the emotions that
enguled the venue at which a man described how he lost his entire amily during the
2007/2008 Post Election Violence (PEV). It cannot convey the traumatic experience o a
woman who was raped during the PEV and her ear that the same could happen to her
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during the 2013 elections. Nor can it convey the horrid experience o a woman who had
to carry the head o her slain husband all the way rom Nakuru to Kisumu. It can neitherconvey the tears that were shed beore this Commission nor the tears that were shed
by the Commissions sta and Commissioners. The stories in these pages are horrid but
they did happen, here on our land. In a nutshell, there has been, there is, suering in
the land.
So while this Report is the inal product o this Commission, and with the passage
o time will be viewed as the primary legacy o our work, we know that the work o
the Commission is also written in the hearts and souls o each and every person who
interacted with the Commission: the statement takers and statement givers; victims,
adversely mentioned persons, and those who reside simultaneously in both categories;
witnesses who testiied in public, and those who testiied in camera; those employed
by the Commission, and those who took on the task o monitoring and reporting on
the work o the Commission; and inally, the millions o others who may have viewed
a news story, or read an opinion piece, or seen the Commissions truck with our logo,
Tusirudie Tena! blazoned on its side. Each o these individuals, and the interactions theyhad with the Commission, whether positive or negative, are a part o this Report, and
thus a part o the legacy o our work.
This has been a Commission that, like many that went beore it, both in Kenya and abroad,
has aced its challenges. Some o those challenges at times threatened the very existence
o the organization, and took its toll on many o us, both physically and emotionally. We
lost our original Vice Chair, Betty Kaari Murungi, because o some o those challenges. She
was never replaced, and we end this process with only eight, rather than the original nine,Commissioners.
We aced the many challenges, both anticipated and unanticipated, with courage,
conviction, and commitment. How well we succeeded in the end is not or us to say.
Instead it is or the people o Kenya, both today and in the uture, to determine how much
what we have provided in these pages and perhaps more importantly, how much our
work throughout the our corners o the country over the last our years contributes to
truth, justice, national unity and reconciliation.
We know that some have been rustrated by the act that we spent our years on a
task or which we were originally given a maximum o two and a hal years. At times it
rustrated us. In the best o circumstances, compiling a complete and accurate history
o historical injustices and gross violations o human rights (including violations o not
just the traditional bodily integrity rights, but all o the aorementioned plus socio-
economic rights, corruption, land, and economic marginalization) over a orty-ive
year period would be a daunting task to complete in our years, much less two and
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a hal years. In act it was clear to us rom the early days o the Commission that ours
was not to provide the deinitive history o the broad range o violations committedand suered during that orty-ive year period. Rather, we took our task to be making
a signiicant contribution to our collective understanding o that past, particularly
through the experiences and voices o those who experienced it irst-hand. It is our
hope that this Report, and the other work o the Commission, has at least done that.
Ater our years, we are truly humbled by the enormity o the task acing this great
country o ours. While we have made a small, yet we hope signiicant, contribution to
addressing the legacy o gross violations o human rights and historical injustices, there
is much still to be done. Yet, we take aith in the reorms that have already occurred,
including the adoption o the 2010 Constitution, and those currently in process. Even
more importantly, we are humbled by and also draw strength rom the millions o
Kenyans who, in the ace o sometimes insurmountable odds, struggle to provide or
themselves, their amilies, their communities, and the nation at large. It is that spirit o
perseverance in the ace o adversity, the willingness and ability to rise up above such
challenges with dignity and integrity, which we saw in Kenyans throughout this greatland that gives us hope or the uture o this beautiul country.
God bless Kenya.
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Executive Summary
Introduction
The Report o the Truth, Justice and Reconciliation Commis-
sion (the Commission) has been produced at a critical mo-
ment in Kenyas history. Just two months earlier in March2013, Kenyans concluded a largely peaceul General Elec-tion, adding impetus to the need or solutions that will en-
trench a lasting spirit o peace, national unity, dignity, heal-
ing, justice and reconciliation.
Established in the wake o the tragic and devastating events
o the 2007/2008 Post-Election Violence (PEV), the Commis-sion has produced this Report as the culmination o a pro-
cess that lasted our years and took the Commission to allregions o the country.
The violence, bloodshed and destruction o the PEV
shocked Kenyans into the realisation that their nation, long
considered an island o peace and tranquillity, remained
deeply divided since independence rom British colonialrule in December 1963. It prompted a resh opportunity or
the country to examine the negative practices o the past
ve decades that contributed to a state that still holds sway
in Kenya: normalization and institutionalization o grossviolation o human rights, abuse o power and misuse opublic oce.
Although the PEV was the trigger that led to the estab-
lishment o the Commission, proposals or such a Kenyan
truth commission had been on the agenda since the 1990s
as part o the campaign or a new constitution. The pursuit
or a national transitional justice mechanism entered o-
cial circles ollowing the election into power o the Na-
tional Rainbow Coalition (NARC). In April 2003, the NARCgovernment established the Task Force on the Establish-
ment o a Truth, Justice and Reconciliation Commission
to ascertain public interest in the establishment o a truth
commission. Ater a period o collecting and collating the
views o Kenyans rom across the country, the Task Forceconcluded that indeed a truth commission was necessary.
It recommended the establishment o such a commission
no later than June 2004. However, this was never to be.
Instead, the report and the recommendations o the Task
Force were shelved by the NARC government.
The idea to establish a truth commission revived in the
atermath o the 2007/2008 PEV and in the context o the
Kenya National Dialogue and Reconciliation (KNDR) pro-
cess. The KNDR process resulted in the adoption o, inter
alia, the Agreement on the Principles o Partnership o theCoalition Government (Coalition Agreement) on the basis
o which, the National Assembly enacted the National Ac-
cord and Reconciliation Act on 18 March 2008. The National
Accord paved the way or the establishment o a coalition
government with a President, Prime Minister and two Dep-uty Prime Ministers.
As part o the KNDR process, an agreement or the es-
tablishment o a truth, justice and reconciliation com-
mission (TJRC Agreement) was also adopted. Pursuantto the TJRC Agreement, the National Assembly enacted
the Truth, Justice and Reconciliation Act (TJR Act) on 23
October 2008. The Act received Presidential Assent on 28
November 2008 and came into operation on 17 March
2009.
In terms o the TJR Act, the Commission was inaugurated on
3 August 2009. The broad mandate o the Commission was
to inquire into gross violation o human rights and historicalinjustices that occurred in Kenya rom 12 December 1963
when Kenya became independent to 28 February 2008
when the Coalition Agreement was signed
The work o the Commission was structured into our mu-
tual and overlapping phases: statement-taking, research
and investigations, hearings and report writing. Sta at all
levels were trained and prepared or their various roles toensure that they were sensitive and observed condenti-
ality o all those who gave testimony to the Commission.The Commission also carr ied out civic education and out-
reach activities in partnership with civic organisations and
community based bodies to permit ull and active public
participation in its work and processes. Gender equalitywas a priority in sta composition at all levels and was par-
ticularly important as a means o ensuring that men and
women elt comortable testiying beore the Commis-
sion. To decentralise its presence and reach out to as many
Kenyans as possible, the Commission established regional
oces in Eldoret, Garissa, Kisumu and Mombasa.
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Primary indings
The Commission nds that between 1895 and 1963, the
British Colonial administration in Kenya was responsible
or unspeakable and horric gross violations o humanrights. In order to establish its authority in Kenya, the
colonial government employed violence on the local
population on an unprecedented scale. Such violence
included massacres, torture and ill-treatment and variousorms o sexual violence. The Commission also nds that
the British Colonial administration adopted a divide
and rule approach to the local population that createda negative dynamic o ethnicity, the consequences owhich are still being elt today. At the same time the
Colonial administration stole large amounts o highly
productive land rom the local population, and removed
communities rom their ancestral lands.
The Commission nds that between 1963 and 1978,
President Jomo Kenyatta presided over a government
that was responsible or numerous gross violations ohuman rights. These violations included:
o
in the context o Shita War, killings, torture,collective punishment and denial o basic needs
(ood, water and health care);
o political assassinations o Pio Gama Pinto, TomMboya and J.M. Kariuki;
o arbitrary detention o political opponents andactivists; and
o illegal and irregular acquisition o land by thehighest government ocials and their political
allies
The Commission nds that between 1978 and 2002,President Daniel Arap Moi presided over a government
that was responsible or numerous gross violations o
human rights. These violations include:
o Massacres;
o unlawul detentions, and systematic and
widespread torture and ill-treatment o political
and human rights activists;
o Assassinations, including o Dr. Robert Ouko;
o Illegal and irregular allocations o land; and
o economic crimes and grand corruption.
The Commission nds that between 2002 and 2008,
President Mwai Kibaki presided over a government that
was responsible or numerous gross violations o humanrights. These violations include:
o unlawul detentions, torture and ill-treatment;
o assassinations and extra judicial killings; and
o economic crimes and grand corruption
The Commission nds that state security agencies,
particularly the Kenya Police and the Kenya Army, have
been the main perpetrators o bodily integrity violations
o human rights in Kenya including massacres, enorceddisappearances, torture and ill-treatment, and sexual
violence.
The Commission nds that Northern Kenya (comprising
ormerly o North Eastern Province, Upper Eastern andNorth Rit) has been the epicenter o gross violations o
human rights by state security agencies. Almost without
exception, security operations in Northern Kenya hasbeen accompanied by massacres o largely innocentcitizens, systematic and widespread torture, rape and
sexual violence o girls and women, looting and burning
o property and the killing and conscation o cattle.
The Commission nds that state security agencies
have as a matter o course in dealing with banditry
and maintaining peace and order employed collective
punishment against communities regardless o theguilt or innocence o individual members o such
communities.
The Commission nds that during the mandate period
the state adopted economic and other policies thatresulted in the economic marginalization o ve key
regions in the country: North Eastern and Upper Eastern;
Coast; Nyanza; Western; and North Rit.
The Commission nds that historical grievances over
land constitute the single most important driver o
conficts and ethnic tension in Kenya. Close to 50 percent
o statements and memorandum received by the
Commission related to or touched on claims over land.
The Commission nds that women and girls have been
the subject o state sanctioned systematic discriminationin all spheres o their lie. Although discrimination
against women and girls is rooted in patriarchal cultural
practices, the state has traditionally ailed to curb harmul
traditional practices that aect womens enjoyment ohuman rights.
The Commission nds that despite the special status
accorded to children in Kenyan society, they have beensubjected to untold and unspeakable atrocities includingkillings, physical assault and sexual violence.
The Commission nds that minority groups and
indigenous people suered state sanctioned systematicdiscrimination during the mandate period (1963-
2008). In particular, minority groups have suered
discrimination in relation to political participation and
access to national identity cards. Other violations thatminority groups and indigenous people have suered
include: collective punishment; and violation o land
rights and the r ight to development.
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Structure o The Report
The Report is structured into our volumes. This volume o
the Report (Volume I) provides an account o how the Com-
mission was ormed, how it interpreted its mandate and
conducted its work, and the challenges it aced in carrying
out its mandate.
The second volume (Volume II) is urther divided into three
sub-volumes. Volume IIA ocuses on the major violations
o bodily integrity rights that were committed during the
Commissions mandate period. These are: unlawul killingsand enorced disappearances (that is, massacres, extra-ju-dicial killings, and political assassinations); unlawul deten-
tions, torture and ill-treatment; and sexual violence. While
much o this volume is ocused on violations directly com-
mitted by the state, it also includes descriptions o killings,
severe injury and violence, sexual violence, detention, andother similar violations committed by non-state actors.
The volume starts with a general overview o the political
history o Kenya. This chapter provides the overall political
context or understanding not only the other specic viola-
tions in this chapter, but also the violations and other ma-terials in the rest o the Report. This general political over-
view is then supplemented by a description o the history
o the state security agencies. While other agencies o the
state were responsible or historical injustices and gross
violations o human rights during the mandate period, the
security agencies were both primarily responsible or many
o the acts o commission discussed in this volume, as wellas the acts o omission (the ailure to provide security) that
allowed many o the violations committed by non-state ac-
tors to occur.
Volume IIB ocuses on some o the unique parts o the Com-
missions mandate concerning historical injustices in Kenya.
The volume has three chapters: land and confict; economic
marginalization and violation o socio-economic rights; and
economic crimes and grand corruption.
Volume IIC ocuses on the stories and narratives o groups o
people that are provided special protection under domestic
and international law because o a history o discrimination
and oppression. These are: women, children and minority
and indigenous people. Historically members o these groups
were not recognized as having the same rights as others. Thedraters o the TJR Act clearly had such history in mind, and
empowered the Commission to put in place special arrange-
ments and adopt specic mechanisms or addressing the
experience o historically vulnerable populations. The Com-
mission thus established a Special Support Unit that ocused
on, among other things, ensuring that the Commissions ac-
tivities adequately addressed and were accessible to histori-
cally vulnerable groups. The Commission also held thematic
hearings that ocused not only on the plight and rights o
the aorementioned three groups but also the experienceso persons with disabilities (PWDs). Indeed, the Commission
did put into place specic procedures in its statement taking
exercise and public hearings to accommodate persons with
disabilities. The experiences o PWDs are refected across the
various Chapters o this Volume.
The third volume (Volume III) o the Report ocuses on is-sues relating to national unity and reconciliation in Kenya.
The Commission was mandated to inquire into the causes
o ethnic tension and make recommendations on the pro-
motion o healing, reconciliation and coexistence amongethnic communities.
The nal volume o the Report (Volume IV) provides a cata-
logue o the ndings and recommendations o the Com-
mission. In this volume is also included the Commissions
recommendation relating to the implementation mecha-nism and reparation ramework.
Thematic Overviews
Political History: A general overview
In order to contextualize gross violations o human rights
and historical injustices that occurred during the mandate
period, the Commission divided the political history o Ken-ya into our distinct epochs. These epochs correspond withthe our political administrations that governed the country
prior to and during the Commissions mandate period:
British colonial era (1895 to 1963);
President Jomo Kenyattas era (1963 to 1978);
President Daniel arap Mois era (1978 to 2002); and
President Mwai Kibakis era (2002 to 2008).
A review o the colonial period by the Commission revealeda litany o oences and atrocities committed by the British
administration against the people now known as Kenyans.
These violations included massacres, torture, arbitrary deten-tion, and sexual violence, most o which were committed,
initially, when the British government orced its authority on
the local population, and later, when it violently sought to
quash the Mau Mau rebellion. Between 1952 onwards, the
British administration established detention camps in whichsuspected members o Mau Mau and/or their sympathisers
were tortured and ill-treated. Others were detained in re-
stricted villages where they were used as orced labour under
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When movements arose to advocate or opening up o the
democtatic space and respect or human rights, President
Mois government unleashed a reign o terror. Between
1986 and 1997, hundreds o individuals were detained and
tortured because they were suspected to be members oillegal organizations. The inamous Nyayo House torture
chambers were designed and built during this period spe-
cically or the purpose o terrorizing those who were criti-
cal o, or perceived to be critical o, the established regime.
In 1991, in response to local and international pressure
prompted by the end o the Cold War, President Moi yieldedto demands or a multi-party state. However, with the advent
o multi-party politics, elections began to be identied with
violence. Ethnicity became an even more potent tool or po-
litical organising and access to state resources. Like his pre-decessor, President Moi lacked the commitment to address
grievances related to land. Instead, irregular and illegal allo-
cation o land became rampant during his era in power.
In December 2002, KANU was dislodged rom power by
NARC under the leadership o President Mwai Kibaki. Asa political party, NARC came to power on a platorm that
promised to curb and ultimately eliminate the political
transgressions and human rights violations that had be-
come so common during the 39 years o KANUs rule. NARC
also pledged to address and rectiy historical injustices. Trueto its commitment and in response to concerted calls by po-
litical activists and civil society organisations (CSOs) in the
rst ew months o attaining power, the NARC government
initiated numerous legislative and institutional reorms and
a range o activities aimed at redressing past injustices.
However, it was not long beore autocratic tendencies and
KANU-like practices began to emerge in the Kibaki adminis-
tration. An inormal clique o powerul individuals who were
keen on promoting narrow and regional interests ormed
around the President. Like President Moi beore him, Presi-
dent Kibaki purged the public service o his predecessorsnominees and lled it with people rom his Kikuyu commu-
nity and the larger GEMA community. The administrationpaid lip service to the struggle against corruption. In 2005, all
pretensions by the Kibaki administration that it was pursuing
reorms and a transitional agenda aded ater the rejection
o the Proposed New Constitution o Kenya in 2005 by themajority o Kenyans.
The period leading up the 2007 General Election was char-
acterised by intense violent activities by militia groups, es-
pecially the Mungiki sect and Sabaot Land Deence Force
(SLDF).The government responded to the violence withexcessive orce. In eect, the General Elections o 27 De-
cember 2007 were conducted in a volatile environment in
which violence had been normalised and ethnic relations
had become poisoned. Fertile ground had been prepared
or the eruption o violence. Thereore, when the results o
the Presidential Election were disputed, and both PNU and
ODM claimed victory, violence erupted.
The scale o the post-election violence (PEV) was unprec-edented. It lasted or a period o two months and subsan-
tially aected all but two provinces in the country. It is esti-
mated that 1,133 people were killed, thousands assaulted
and raped, hundreds o thousands more displaced rom their
homes, and property worth billions o shillings destroyed. Itwas one o the darkest episodes in Kenyas post-independ-
ence history
Security Agencies: The police and the military
The police and the military orces are at the centre o Kenyas
history o gross violations o human rights. While other agen-
cies o the state were responsible or historical injustices and
gross violations o human rights during the mandate period,
security agencies were both primarily responsible or manyo the acts o commission documented in this Report, as well
as the acts o omission (the ailure to provide security) that
allowed many o the violations committed by non-state ac-
tors to occur.
Across the country, the Commission heard horrendous ac-
counts o atrocities committed against innocent citizens by
the police and the military. The history o security operationsconducted by these two institutions, either jointly or sever-
ally, is dominated by tales o brutal use o orce, unlawul kill-ings (sometimes on a large scale), rape and sexual violence,
and burning and looting o property. In security operations,
the police and the military oten employed collective punish-ment: the indiscriminate rounding up o individuals in a spe-
cic area, then brutally punishing them, all with the expec-
tation that this would yield the desired results o increased
security. Thus, since independence, the police and the mili-
tary in Kenya have been viewed and invariably described as
rogue institutions; they are still eared and seen as perennial
violators o human rights rather than protectors o the same.
In this regard, the Commission sought to trace the origins o
practices employed by security agencies during security op-
erations. What emerged is that the practices adopted by the
police and military orces in independent Kenya are starkly
similar to those employed by the same orces during the
colonial period. In essence, Independent Kenya inherited apolice orce that was deeply and historically troubled. From
the 1890s right through to the late 1950s and early 1960s, the
Kenya police orce clearly structured itsel around the polic-ing needs o a small and politically powerul elite and racial
minority. Kenyas police orce was rom the outset built to
R V l I
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cater to these privileged ew. When, however, the Kenya Po-
lice Force did encounter Arican populations it was with a orce
and devastating violence. Throughout the temporal period o
the Commissions mandate this resort to brutality by the secu-
rity agencies never changed. The police orce remained a lawunto itsel. The Kenya Police Force o today largely resembles
the Kenya Police Force o the colonial period: narrow in out-
look, unclear in mission and violent in tendency.
It is thereore not surprising that the use o excessive and a-tal orce by security agents, especially by the police, against
citizens has been a recurring theme throughout Kenyaspost-independence. Indeed, incidents o extra-judicial kill-
ings go back to colonial period. The practice continued into
the post-colonial period. Research and investigations con-
ducted by the Commission, coupled with testimonies it re-ceived during its hearings, show that during the mandate
period, there was a common trend and pattern o extra-
judicial killings and enorced disappearances o members
o illegal organizations such as Mungiki and Sabaot Land
Deence Force.
Moreover, whenever the police orce has had to disperse
crowds or stop riots, it has used excessive and dispropor-
tionate orce, an approach which has always resulted in the
deaths o largely innocent citizens. Yet, successive govern-
ments have always and consistently denied any involvementby the police or other security orces in extra-judicial killings.
Statements made in Parliament by successive ministers re-
sponsible or Provincial Administration and Internal Security
reveal a pattern o blatant denials and mere justications o
what are otherwise horrible tragedies.
The history o the military paints a similarly grim picture.
During the colonial period, and especially during the emer-
gency period, the military was engaged in the screening and
interrogating o people in order to extract inormation rom
them concerning Mau Mau. It is rom these twin processes
o screening and interrogation that the most astonishingevidence o widespread and institutionalized torture has
emerged. The military would continue to use similar brutaltactics way into the post-independence era and as recently
as March 2008 during Operation Okoa Maisha in Mt. Elgon.
Shita war
The Shita War, waged between 1964 to 1967, represents a
period in Kenyas history during which systematic and wide-
spread violation o human rights (including mass killings) o
Kenyan citizens occurred. Ocially, the death toll stands at
2,000. Unocial estimates place the death toll at 7,000. TheShita War acts as a bridge rom the violations committed bythe colonial power prior to independence and the violations
committed by the newly independent government. The War
arose out o a long history o political unrest in Northern
Kenya where ethnic groups resisted centralised colonial rule.
Ater independence state security agents alongside military
personnel were deployed in what was called the NorthernFrontier District to quell the continuing resistance.
Witness testimonies beore the Commission brought to the
surace the long history o violation o human rights and
related activities in Northern Kenya. From the colonial days,
Northern Kenya had been administered dierently rom the
rest o the country. Travel and movement restrictions wereimposed and administrators were given extraordinary pow-
ers to arrest and detain members o what the state reerred
to as hostile tribes.
The Commission did not get much inormation about the
war itsel because o the secrecy around military operations
and the governments reluctance to provide the inormation
in its possession. However, individuals and communities a-ected by the war submitted memoranda and inormation
to the Commission which enabled it to set out the broadcharacteristics o the war. The Commission established that
the Shita War was characterised by unimaginable brutality.
Mass killings eatured prominently in the witness testimo-
nies and narratives. Pastoralist communities lost almost 90percent o their livestock through heavy handed strategies
in which livestock were shot dead or conscated. Many resi-
dents o the region trace the high levels o poverty experi-
enced by communities o Northern Kenya to the excesses o
the Shita War.
Women narrated horrible stories o rape and other orms o
sexual violence and the military and police were reportedas major perpetrators. During the war, some communities
fed to Somalia to escape the violence and only returned
decades later, in 2000.
The signing o a Memorandum o Understanding in Arusha,
Tanzania on 28 October 1967 between the governments o
Kenya and Somalia marked the ormal end o the war. Wit-
nesses complained that they had no idea what was decidedduring the bilateral negotiations between the Somali and
Kenyan governments as the contents o the agreement were
never revealed to the people o the Northern Kenya, includ-
ing the citizens residing in the north.
Massacres
The history o massacres in Kenya predates colonialism in
Kenya. There were inter and intra-ethnic killings, as illustrat-
ed by the Maasai wars o the 1800s. This was the context inwhich the colonialists entered the scene and opened resh
horizons or mass violence.
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The Commission studied the history o massacres in Kenya
to identiy broad trends and patterns o mass violence that
have recurred throughout Kenyas history. The rst prop-
erly documented massacre in Kenyas colonial past was the
Kedong Massacre o 26 November 1895. Other massacresinclude those committed in the context o the Giriama Re-
bellion o 1912-1914, and the Kollowa Massacre o 24 April
1950. Other massacres were committed during the Mau
Mau uprising between 1952 and 1959. In this regard, the
Lari and Hola Massacres stand out. In all these massacres,the colonial state was present and was always unapologet-
ic. Indeed, the colonial state always tried to minimise, coverup or fatly deny the occurrence o such mass killings.
At independence, the country was blood-drenched with a
history o massacres and entered its uture with historical
baggage that was to aect uture events. The Commissions
research, investigations and hearings revealed that most
massacres in Kenya have occurred in Northern Kenya andhave always occured in the context o what the state reers
to security operations. The Commission has document-
ed the ollowing massacres committed by state securityagents: Bulla Karatasi Massacre; Wagalla Massacre; Malka
Mari Massacre; Lotirir Massacre; and Murkutwa Massacre.
To date, no government ocial has been prosecuted orotherwise publicly held to account or these atrocities. The
Commission also ocused on a ew massacres committed by
non-state actors: Turbi Massacre and Loteteleit Massacre.
Political Assassinations
Kenya has lost some o its best and brightest to political as-sassination: Pio Gama Pinto, Tom Mboya, Josiah Mwangi
Kariuki (popularly known as JM Kariuki), Robert Ouko, Father
Antony Kaiser, Bishop Alexander Muge, and many others. A
number o these deaths have been the subject o high pro-
le investigations; in some cases they have been subject to
repeated investigations. Yet despite all o the investigationsin these and other similar cases, the uncertainty concerning
who was responsible or the killings and why specic indi-
viduals were killed is oten as unclear as it was on the day the
body was ound. Given the ailures o past investigations, the
Commission was ully aware that solving any o the mysteries
surrounding these deaths would be dicult and challenging.
Nevertheless, the Commission gathered inormation, un-
dertook research and investigations, and solicited testi-
mony to understand the context in which such killings took
place; the circumstances and thus probable causes o such
killings; the impact o such kil lings, particularly on the am-
ily and riends o the victim; and the ailure o investigationsto solve the mystery o why a person was killed and who
was responsible. The Commissions work in relation to po-
litical assassinations conrms that the state was complicit
in the assassination o Pio Gama Pinto, Tom Mboya, and
Josiah Mwangi Kariuki.
Detention, torture and ill-treatment
In many ways, and despite the many challenges that it con-
tinues to ace, Kenya is a country whose democratic and
political space is relatively wide and dynamic. At least rom
2003, the state has more oten than not respected citizens
reedom o expression, assembly and the right to associa-tion. However, it was not always this way. The reedom thatKenyans enjoy today is the result o many years o activism
and struggle against dictatorship and state repression or
violence. It is a reedom that came at a high price or many
men and women who dared criticize or oppose Jomo Keny-
attas and Daniel Arap Mois political administrations. Many
o them were detained without trial, tortured, and subjectedto inhuman and degrading treatment. Their amilies were
equally subjected to untold sorrows by state operatives.
Many others succumbed to torture or were killed ater un-dergoing torture.
Research and investigations conducted by the Commis-
sion coupled with the testimonies it received, shows that
widespread and systematic use o torture occurred in the
ollowing contexts:
during the Shita War;
in the atermath o the 1982 attempted coup;
between 1982 and 1991 purposely to quell dissenting po-
litical voices and as part o the crackdown on Mwakenya;
between 1993 to 1997 as part o the crackdown on the
February Eighteenth Revolutionary Army (FERA);
in 1997 ollowing a raid on a police station in Likoni; and
most recently in 2008 during Operation Okoa Maisha, a
security operation to fush out members o the Sabaot
Land Deence Force (SLDF) in the Mount Elgon region.
On the basis o its research, investigations and hearings,the Commission has made, amongst others, the ollowing
ndings:
systematic use o torture was employed by the Special
Branch during interrogations o detained persons in
Nyayo House, Nyati House, police stations, prisons, and
other locations.
Nyayo House basement cells and the 24th, 25th and 26thfoors were used or interrogations and torture ater the
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attempted coup o 1982, during the Mwakenya crack-
down, and the FERA/M crackdown, and that the state
purposely designed and built these places or torture
purposes.
the State established a task orce or the specic pur-
pose o interrogation and torture o suspects. The Com-
mission has recommended the prosecution o the mem-
bers o the this task orce.
the Judiciary requently cooperated with the prosecu-
tion and security orces in the commitment o violations
by reusing bail and by admitting evidence obtainedthrough torture. The judiciary was also complicit in
these violations to the extent that they conducted trials
beyond working hours.
To prevent the recurrence o torture, the Commission has
recommended the enactment o legislation prohibiting all
orms o torture and other orms o cruel, inhuman or de-
grading treatment or punishment committed both by state
and non-state actors. The Commission has also made the
ollowing recommendations:
that the President oer a public apology to all victims
o torture and unlawul detention and acknowledge
the role o the state in the design and use o the Nyayo
House torture cells or torture purposes
that Nyayo House be converted into a memorial ater
consultation with victims o torture
the establishment o the Oce o the Independent In-
spector o Prisons and All Places o Detention. This oceshall be charged with the unction o inspecting prison
conditions and investigating allegations o torture. TheOce shall also be mandated to investigate all cases o
death in custody. The oce shall issue periodic reports
to the public on the condition o prisons in Kenya and
other matters under its mandate.
The Commission has also recommended the provision o
reparation or victims o unlawul detention, torture and ill-
treatment as per the ramework described in the Chapteron Reparation Framework.
Sexual Violence
Sexual violence is a crime that intimately impacts the victim
both physically and psychologically. It uses the victims own
sexual anatomy to dominate, suppress and control. For a
long time, women and girls were believed to be the main, i
not the only, victims o sexual violence. Over time, there has
been acknowledgement that men and boys are also victimso sexual violence.
The Commission received hundreds o statements rom
women, men and children outlining serious sexual violations
perpetrated by individuals and groups o people including
ordinary citizens and state ocials. A total o 1,104 state-
ments rom adults were received in regard to sexual viola-tions, representing a victim count o 2,646 women and 346
men. The Commission acknowledges that due to shame and
stigma associated with sexual violence, many victims o sexu-
al violence did not report sexual violence to the Commission.
Recognizing that sexual oences are ordinarily complex to
investigate, the Commission adopted specic measures toensure that sexual oences were eectively and sensitively
investigated. Firstly, investigators who had previous experi-
ence in investigating sexual oences and who had under-
gone training on the same, including on the Sexual Oences
Act, were recruited. Secondly, a set o guidelines outlining
the approach to be taken in investigating sexual violence wasprepared. The overall goal o the guidelines was to ensure
that survivors o sexual violence were treated with dignity.
In acknowledgement o the stigma, shame and embarrass-ment associated with sexual violence, the Commission o-
ered victims o sexual violence the option o testiying ei-ther in camera or in public. The idea was to provide victims
o sexual violence with not only a platorm to be heard, but
also a sae environment in which they could share their ex-
periences reely. The Commission also engaged the services
o counsellors to oer psycho-social support beore, during
and ater the hearings to enable the victims not only to nar-rate their experiences but also to cope with what they had
experienced.
The Commissions research, investigations and hearings re-
vealed the ollowing in respect o sexual violence:
Kenyan security orces (particularly the Kenya Police and
the Kenya Army) have oten raped and sexually violated
women and girls during security operations;
Sexual violence has always escalated during conficts
and periods o generalized violence; members o the British Royal Army stationed in Kenya
or military training has been responsible or the rape
and sexual violation o women and girls in Samburu and
Laikipia
in one particular case, the Commission received about
30 statements rom women who were raped in Kituiduring an eviction reerred to as Kavamba Operation.
The Commission has recommended the prosecution o
Nganda Nyenze who supervised the evictions and therape o the women.
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Land and conict
For the majority o Kenyans, land is the basic, and in mostcases, the only economic resource rom which they eke out
a livelihood. The ability to access, own, use and control land
has a proound impact on their ability to eed and provide
or their amilies and to establish their socio-economic and
political standing in society. However, tensions and struc-tural conficts related to land have simmered in all parts
o Kenya throughout the years o independence. In recent
years, many land related problems have degenerated into
social unrest and violence.
Illegal acquisition o large tracts o land rom indigenous
communities during the colonial period rendered many
communities at the Coast and in mainland Kenya landless.
While aected communities expected redress through re-
settlement, restoration o their land and compensation
rom the Kenyatta and subsequent post-independenceadministrations, the government, instead alienated more
land rom already aected communities or the benet o
politically privileged ethnic communities and the politicalelite. This led to deeply held resentments against specic
ethnic communities who beneted rom resettlement at
the expense o those who believe they are the rightul own-ers o the land.
The Commission conrmed that land has been and remains
one o the major causes o intra and inter-ethnic conficts in
the country. However, addressing historical and post-inde-
pendence land injustices has not been genuinely prioritised
by successive governments despite the critical importanceo land to the countrys economic development. There has
never been any sustained eort to address land injustices
that have occurred since colonial times.
The Akiwumi Commission o Inquiry established in 1998
to look into the ethnic clashes related to the 1997 General
Election vividly demonstrated how the skewed land alloca-
tion and ownership has uelled ethnic tension and led to vi-olent conficts throughout Kenya and particularly in the Rit
Valley and Coast regions. During the mandate period, land-related grievances led to the emergence o militia groups in
some parts o the country. The stated aims o these militia
groups oten relates to the reclamation o lands, and the
removal by violent means, o current occupants who theyclaim rendered them squatters. The Sabaot, or example,
took up arms in 2006 in the Mount Elgon region to reclaim
what they consider to be their land.
Politicians oten exploit the real or perceived land injus-
tices especially around election time, or personal gain. The
dangerous mix o land-related claims with political aspira-
tions o specic groups or individuals remains a tinderbox
that could ignite at any time.
The Commission ound that the willing-buyer, willing-sell-er land tenure approach was grossly abused and is one o
the major actors causing disinheritance and landlessness,
especially in the ace o rising human populations.
The unresolved land injustices have led to discriminatory
and exclusionary practices that work against nationhood.
The increasing eeling among the long-disadvantagedpastoral communities and the Kalenjin in particular (both
herders and armers) that they should ght at all cost to re-
claim their stolen land rom the rich oreign (non-Kalen-
jin) settlers is one example. Although no attempt was
made by President Mois government to revoke the landsettlements o President Kenyattas regime, it became in-
creasingly dicult or non-indigenous people to buy land
north o Nakuru. Non-Kalenjin individuals and groups who
bought parcels o land in Kalenjin-dominated areas ound
it hard to get them demarcated or obtain title deeds.
Negative ethnicity appears to be refected even in the set-
tlement o internally displaced persons; those who get re-
settled oten come rom communities able to access politi-
cal power.
The litany o historical injustices relating to land involves a
complex variety o permutations. Almost every type o pub-
lic land was aected: rom orest land, to water catchments,public school playgrounds, road reserves, research arms,public trust lands and land owned by public corporations
and private individuals. Perpetrators o the injustices were
equally varied and include holders o public oce and gov-
ernment leaders at every level, the political and economic
elite, church organisations, individuals and communities.
Those who held sway usurped the institutions o govern-ment to their bidding including the legislature, the execu-
tive and the judiciary.
Ocials who were supposed act as custodians o public
land under the public trust doctrine, became the acilitators
o illegal allocation, increasing landlessness and land scar-
city. The practice o land grabbing in many cases resulted
in violence, as squatters resisted eviction rom governmentland that was oten subsequently lost to land grabbers.
State corporations became conduits or get-rich-schemes
in which public lands were transerred to individuals
and then quickly bought o at exorbitant prices by state
corporations.
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Economic marginalisation and violation o
socio-economic rightsThe TJR Act mandated the Commission to inquire into and
establish the reality or otherwise o perceived economic
marginalisation o communities and make recommenda-
tions on how to address the marginalisation.
Evidence shows that while the majority o Kenyans may nothave been detained without trial or subjected to torture
and other physical integrity violations, governments exclu-
sionary economic policies and practices in the distributiono public jobs and services inficted suering on huge sec-
tions o society at dierent historical moments. As the Com-mission travelled the country collecting statements and
conducting public hearings, the pervasiveness o socio-
economic violations was evident.
In terms o its mandate, the Commission identied a num-
ber o regions as economically marginalised in the post-independence era:
North Eastern (including Upper Eastern) Province;
Nyanza;
North Rit;
Coast;
Western Province.
Although poverty was ound to be prevalent all over thecountry it was disproportionately so in these marginalised ar-
eas. By denition the Commission noted that marginalisation
involves direct and indirect discrimination in the distribution
o social goods and services. The economically marginalised
also tend to be marginalised culturally, socially and politi-cally. The Commission ound that in almost all cases, the state
played a direct role in increasing or decreasing inequality in
communities.
The Commission experienced a challenge in getting reli-
able and quality data, particularly on state unding o social
programmes and inrastructure over the years in regionsidentied as marginalised. In making its assessment the
Commission used a number o indicators o marginalisation
including physical inrastructure, employment (especially
in the public sector), education, health, housing, access to
land, water, sanitation and ood security.
Although Central, Nairobi, South Rit Valley and Lower East-
ern provinces were not proled as economically marginal-ized regions, this does not mean that poverty is not evident
in these regions. In act, some residents o these regions
also considered themselves marginalised at one time or
another.
Other examples o marginalisation include narratives rom
within specic regions based on local rather than national
orces. In Nyanza, the Kuria blamed their plight on the Luoand the Abagusii, while in Nyandarua the residents consid-
ered themselves marginalised by their neighbours within
the region. In the Western region, Bungoma and Vihiga were
seen as beneciaries o the limited social goods through co-
option o individuals by the Moi regime. Co-option o lead-
ers rom the region oten camoufaged the reality o mar-
ginalisation giving the sense o political inclusion that didnot necessarily translate to economic inclusion.
Marginalisation has been used deliberately as a political
tool to punish recalcitrant politicians by punishing their
ethnic group or region. The 1966 allout between Jomo
Kenyatta and Jaramogi Oginga Odinga was the beginningo the disintegration o the Kikuyu-Luo alliance, which was
at the core o KANU at independence. It marked the start o
the marginalisation o Nyanza and the rst blatant use o
negative ethnicity at a political level. Later similar disagree-
ments between Raila Odinga and Mwai Kibaki led to the
blacklisting o Luo Nyanza both in terms o access to capitaldevelopment and appointments to public positions. Testi-
mony beore the Commission suggested that Nyanza had
been in the economic and political cold or all but 10 years
since independence. This isolation increased poverty and
let various social and economic problems unaddressed.
In the case o North Eastern Province, employment, land, in-rastructure, poverty, education and the institutional rame-work and capacity were the key indicators o the margin-
alisation o the region. One o the greatest impediments to
development o the region is the lack o land registries in the
region. As or inrastructure, which includes public utilities
and is a major determinant o development and progress,the region has no tarmac road except the Isiolo-Moyale road,
which is still under construction. The region has the highest
rural population living under the poverty line at 70 percent,
compared to 32 percent or Central province. Lack o oodsecurity is compounded by the erratic and low rainall and
declining pastures and other resources. This in turn createsconfict over these resources, urther depleting the limited
resources and the livestock. The paucity o schools and their
relatively prohibitive cost in an area o widespread poverty
has aected access to the limited education opportunities.
School enrolment stands at about 18 percent or primary
schools and 4.5 percent or secondary schools compared tothe national average o about 88 percent and 22 per cent
respectively or primary and secondary schools respectively.
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Service delivery or health, water and sanitation were also
way below the national average gures.
The ace o marginalisation was ound to be dierent in di-
erent regions. The relatively ertile land and relative secu-rity o Western province tended to underplay the indicators
and perceptions o marginalisation. While marginalisation
has not reached the extent o that in North Eastern or Nyan-
za, Western was ound to be orgotten in the development
agenda with cash crops and related industries (cotton, sug-arcane, rice and sheries) completely ignored or badly mis-
managed when compared to those o other regions.
The North Rit Valley region was ound to have been mar-
ginalised rom colonial times through to the present. In-
security, a harsh climate and regular inter ethnic and crossborder confict make the region dicult to live in. Absence
o security personnel has led to a localised small arms race
as groups accumulate arms to protect themselves. Succes-
sive governments maintained the same closed area policies
as the colonialists preventing interaction with the rest o
the country eectively marginalising the region. Indicatorsor education, health, inrastructure, water, housing and
sanitation were very low compared to the rest o the coun-
try. Only one hospital serves the six districts o Turkana.
Landlessness is the major indicator o marginalisation at theCoast; land is the most intractable o the problems because
o its historical origins. The original local inhabitants were
dispossessed o their land, rst by the colonialists, and later
by raudulent transactions that again ignored the original
owners o the land. This let most o the land in the 10-mileCoastal Strip in the hands o absentee landlords. Ater inde-pendence, the dispossession o the local people was con-
rmed and certied instead o being rectied, which led to
a palpable sense o a conspiracy against coastal communi-
ties orchestrated by people rom up-country.
Hearings o the Commission were dominated by this prob-lem. The most aected areas were Taita Taveta, Lamu, Malindi
and Tana River districts. The Coast lags behind in terms oalmost all indicators rom inrastructure to health, educa-
tion, housing, water and sanitation. The regions also exhibits
gender marginalisation attributed to religious and cultural
dynamics o the region. Rural areas are served by dilapidatedroad networks compared to Mombasa, Kili, Malindi and
Kwale.
Grand corruption and economic crimes
The ght against corruption is central to the struggle or
human rights. Corruption has always greased the wheels oexploitation and injustice which characterize our world. As
such, corruption is not just a crime that provides an unde-
served benet to a private individual (oten an enormously
large such benet). It is a crime that lessens the availabilityand access to the undamental needs o human lie: ood,
education, health care, shelter, etc. In other words, the crimeo corruption is directly related to the violations o socio-
economic rights.
While corruption violates the rights o all those aected by
it, it has a disproportionate impact on people that belong tovulnerable groups. Examples o these are minorities, indig-
enous people, persons with disabilities, persons living withHIV/AIDS, reugees, prisoners, the poor, women and children.
They are more exploited and less able to deend themselves.
Their vulnerability makes them easy victims o corruption.
Kenyas post- independence history has been marred by
successive cases o huge scandals. In order to appreciate
the magnitude and scale o grand corruption in Kenya, the
Commission resorted to documented cases o grand corrup-
tion rom as early as the KenRen scandal in the 1970s up to
the IEBCs procurement o biometric voter registration kits in2013. In the last two decades, the media and civil society ex-
posed numerous multimillion dollar nancial scams in Kenya
including the ollowing: Ken Ren Scandal; Goldenberg Scan-
dal; Charter House Bank Scandal; and Anglo Leasing Scandal.
In its Chapter on Grand Corruption and Economic Crimes, the
Commission has demonstrated the linkages between these
crimes and the enjoyment o human rights and the huge
cost that Kenya is paying through corruption and economic
crimes.
Women
Men and women experience violations o human rights and
injustices dierently. Building on the provisions o the TJR
Act, the Commission adopted policies and took measures
that ensured that the experiences o and violations su-
ered by women were appropriately and comprehensively
covered both in its work and this Report. These policies andmeasures related to the Commissions statement-taking
process, hearings, ocus group discussions, and other activi-
ties undertaken by the Commission.
Perhaps most importantly, the Commission held separatehearings or women in order to encourage women to speak
about their own experiences. The womens hearings were
ramed as conversations with women. They were presided
over by emale Commissioners and sta, and were thus
designed to be sae spaces where women could reely talkabout violations that were specic to them. The womens
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hearings were conducted in all regions o the country. In to-
tal, over 1000 women attended the womens hearings across
the country, with an average o 60 women in each hearing.
The Commissions chapter on gender deliberately ocuses onthe various injustices that women aced during the mandate
period. Although women have always constituted hal o
Kenyas population, they have been traditionally relegated to
a subordinate status by patriarchal cultural norms and prac-
tices. Harmul traditional practices in Kenya include, amongstothers, preerence or male children, early or orced marriag-
es, wie beating, emale genital mutilation and widow inher-itance. These norms were normal and sanctioned by law in
the greater period covered by the Commissions mandate. As
such the Commission has ound that women were the sub-
ject o systematic discrimination and/or gender-based perse-cution throughout the mandate period.
An important nding made by the Commission is that in sit-
uations o conficts women are specic targets o violence,
particularly sexual violence which is oten accompanied by
other orms o violations. The Commission has documentedatrocities committed against women during the ollowing
three selected conficts: Mau Mau War; Mount Elgon confict
and the 2007/2008 Post-Election Violence.
Conficts always result in the orced displacement o popu-lations. The Commissions hearings revealed that the states
response to the plight and needs o internally displaced
women was less than satisactory. Generally, the states re-
sponse ell short o its obligations as stipulated in relevant
human rights instruments.
Although most women who testied beore the Com-
mission were victims o displacement occasioned by the
2007/2008 PEV, many o them had been victims o prior
evictions and displacement. During the PEV, women su-
ered violations during fight to the camps or to places
where they hoped they would nd reuge. On resettlemento IDPs under Operation Rudi Nyumbani, the Commissions
hearings revealed that the corruption and mismanagementwhich marred the entire process had a particularly devastat-
ing impact on women. A considerable number o displaced
women told the Commission that they received neither the
start-up capital nor the payment in lieu o housing.
Kenyan Reugee women in Uganda ace a peculiar problem.
During its womens hearings, it became evident that many
women ound themselves in a dilemma as to whether they
should return to Kenya or not. While some women were
willing to return, their husbands were not. As such, theycould not return to Kenya without straining or breaking
their marriages. The general eeling among the Kenyan
reugees in Uganda is that o a people who have been ne-
glected and abandoned by their government.
Kenyan women were also victims o state repression dur-ing the mandate period. As primary victims o state repres-
sion, scores o women, especially politicians, academics or
human rights activists, were targets o state violence both
during Kenyattas and Mois administrations. A number o
emale members o parliament who were vocal in their op-position to repressive rule would be subjected to trumped-
up charges, detained, or even tortured. The vast majority owomen were however secondary victims o state repres-
sion. Many women were widowed ater their husbands
were killed in security operations or died in police custody
ater undergoing torture. Some were subsequently throwninto destitution since husbands are the main breadwinners
in many households in Kenya. Those whose husbands or
sons were detained aced similar ate
In sum, women have suered terrible atrocities just because
o their sex and gender. The Commission has documentedthese atrocities not only or historical purposes, but also as
a bold statement to political leaders and policy makers thatachieving a just and air Kenya partly depends on the initia-
tives they will take to heal the soul o the Kenyan woman. As o
now, the vast majority o women eel abandoned by the state.
Although in recent years many reorms have taken place to
ensure womens empowerment, much more still needs to be
done or these reorms to make substantive and real contribu-tions in the lives o women. There is need or special attention
to the most vulnerable among women: women in rural andslum areas, internally displaced and reugee women, women
with disabilities, women living with HIV/Aids and women be-
longing to minority and indigenous groups.
Children
Children occupy a special place in any eort to understand
the impact o gross human rights violations and historical
injustices. Children are, on the one hand, some o the most
vulnerable people in a community and as such are less ableto deend themselves against those who would do them
harm, and are more likely to suer both short- and long-
term eects rom gross violations o human rights. At the
same time, children are the uture o the country. Their ex-
periences o their community, o their peers, o ocials, ando other people in authority have proound impacts on their
uture, including how they trust, or dont trust, those in au-
thority. In addition, experience throughout the world con-
rms that children who are themselves the victims o abuse
are more likely themselves to be abusers o others whenthey become adults. Some, as the Commission discovered,
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were both victims and perpetrators while still under the age
o eighteen; being orced, or example, to join a militia and
then committing violations as a member o that militia.
Thus, while the mandate o the Commission did not have
a child-specic ocus, the Commission made deliberate e-
orts to acilitate participation o children and young peo-
ple in its proceedings and to ensure that their interests and
views both as direct and indirect witnesses and victims ohuman rights violations were captured. The Commission
designed child-riendly processes to promote the partici-
pation and protection o children. Most notably, the Com-
mission held a thematic hearing in Nairobi that included an
opportunity or children to testiy in their own words in an
environment that was sae and supportive.
The Commission heard horric and heart-rending stories oabuse, violence, and other gross violations o the rights o
children. The Commission also heard the anger o some o
these children some going so ar as to say they wanted
to kill the people who had abused them. As such, the chil-
drens chapter provides a cautionary tale or the uture o
the nation. The roots o tomorrows conficts and violationsare ound in part in the treatment o our children today.
Minority groups and indigenous people
Testimony beore the Commission clearly indicated that the
rights o minorities and indigenous people have been violat-
ed repeatedly since independence. The problem is systemic.
Many oppressive laws sanctioned the collective punish-ment o minority and indigenous communities. While the
laws were supposed to apply across the country in practice
they only applied to communities in Northern Kenya where
a signicant number o minority groups and indigenous
people are to be ound. The anti-stock thet law, or in-
stance, legalised the collective punishment o a communityor the oences o individual members o that community.
Witness testimony beore the Commission showed minori-
ties and indigenous peoples routinely had their collective
identity marginalised. National data classied them as
others creating deep-seated eelings o exclusion among
groups such as the Munyoyoya, Nubians, Suba,Waata,
Ogiek, Sabaot, Kuria, Kona, Bajuni, Hara, Saakuye, Burji,Isaak, Sengwen whose existence was eectively denied by
the state and unknown to the majority o Kenyans. Yet the
right to identity is an important right as it is associated with
several other rights such as the right to culture.
The orced displacement o pastoralists and hunter-gatherers rom their ancestral lands also increased their
marginalisation, deepened their poverty and created con-
fict with neighbours. For instance, the Endorois were bru-
tally evicted rom the trust land they inhabited around lakeBogoria when the government declared the area a game
reserve. They were displaced, lost property and denied ac-cess to traditional cultural and religious areas.
The small population size that characterises minorities and
indigenous groups has denied them infuence and let them
out o policy and decision making even where decisionsdirectly aect them. During the mandate period, minority
groups and indigenous people were unable to access jus-tice at many levels rustrating their eorts to protect other
rights. Minority and indigenous women suered multiple
orms o discrimination. They bore the brunt o inter-ethnic
conficts and insecurity and had diculty accessing socialservices and goods rom education to health services.
The 2010 constitution has several provisions aimed at se-
curing an ecient legal ramework or the protection and
promotion o the rights o minorities and indigenous peo-
ple. However, it needs statutory and institutional mecha-nisms or the realisation o these objectives.
Ethnic tension
The Chapter on Ethnic Tension documents the main causes
and eects o ethnic tension in Kenya. The chapter is based
mainly on testimonies that the Commission heard during itshearings across the country. In addition to holding such hear-
ings, the Commission also organized a thematic hearing on
ethnic tension and violence on 2 February 2012 in Nairobi.During this thematic hearing the Commission heard presen-
tations by experts and relevant institutions such as the Na-
tional Cohesion and Integration Commission (NCIC).
Through its research and hearings, the Commission iden-
tied several causes and drivers o ethnic tension in the
country. The roots o most o these causes are traceable to
the practices o colonial administration. Firstly, the colonial
government pursued a policy o divide and rule in order
to consolidate their hold on the country, and to lessen thepossibility that the Arican population would resist colonial
rule. To that end, they magnied the dierences between
the various communities and regions, and stereotyped
each community in a manner that would sow suspicion, ha-tred and create a sense o otherness.
Secondly, the colonial government created ethnically de-
ned administrative boundaries. In determining such bound-
aries, little serious thought, i any, was given to historicalinter-ethnic interactions and relations. Thirdly, the colonial
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belonging, nationhood, and public trust in political and gov-
ernance institutions.
Since independence, successive governments have em-
ployed silence, denial and selective amnesia whenever indi-
viduals and agencies have raised the need to address these
undamental issues. Painul memories o have been passedrom one generation to another, and as a consequence, pre-
sent generations continue to hold grudges or violations
and historical injustices meted against their oreathers and
mothers. Until now, the scale and impact o human rights
violations and historical injustices have neither been ullyacknowledged nor suciently addressed.
In its work, the Commission recognised that meaningul
reconciliation is not an event, but rather a long process. At
the individual level, the decision to reconcile is a personal
one, aimed at setting the stage and establishing the basisor the beginning o a reconciliation process. Accordingly,
the Commission worked towards ensuring that its activities
in the course o its lie and the result o its work would sub-
stantially contribute to the process o reconciliation.
As part o its reconciliation activities, the Commission con-ducted reconciliation workshops across the country. It also
conducted Workshops on Trauma Healing and Strategy
Formulation in selected places in the country.
The Commission ound that the views o victims on reconcili-
ation are varied. There are those who willingly orgave theirperpetrators and did not even need to meet them. There
are those who simply wanted to know why atrocities werecommitted against them. But there are also those who were
unwilling to orgive and wanted to see their perpetrators
prosecuted or the wrongs they committed. Adversely men-tioned persons, on the other hand, were largely unwilling to
acknowledge any responsibility or events that resulted in
unspeakable atrocities.
Implementation Mechanism
Past experiences with the work o truth commissions andcommissions o inquiry around the world have shown that
a major challenge lies in the implementation o the recom-
mendations contained in the reports o these commissions.
More oten than not, the lie o these commissions ends
at the point o submission o their nal report, leaving the
implementation to other actors who oten do not ollowthrough with the recommendations. This challenge has also
characterized the work o many commissions o inquiry in
Kenya in the past.
The consequences o this challenge have been to limit the
impact o the work o these commissions and to contribute
to public atigue and disappointment about such commis-
sions ater expectations were raised. The draters o the TJR
Act must have had this challenge in mind when they em-powered the Commission to recommend an implementa-
tion mechanism to ensure its recommendations are duly andtimely implemented, and to monitor progress in that imple-
mentation. The government is expressly obligated under the
TJR Act to create the implementation mechanism as set out
in this Report.
The Commission was sensitive to balancing a number o
important objectives in its recommendation or an im-
plementation mechanism. First, it is imperative that the
Commissions Report, the result o close to our years o
work, be widely disseminated and accessible to the Ken-
yan public, and in particular to the thousands o Kenyanswho directly participated in and contributed to the Com-
missions work.
Second, it is imperative that the Commissions recommen-
dations, including but not limited to recommendations re-
lated to reparations, be ully implemented. Third, given theimportance o many o the recommendations o the Com-
mission, including the recommendations related to repa-rations, the Commission realized that the implementation
mechanism would need to be independent o those bod-
ies to which such recommendations are directed in order
to monitor them eectively. In additi