Archive 2003


Monday, February 17, 2003 


After Such Knowledge, What Forgiveness?

There is a malicious child in all of us who delights, however furtively, in seeing people finally get what is coming to them. I know many of you shared my glee at the sight of our new Minister for Tourism striding through the Kenyatta International Conference Centre to reclaim it from Kanu. The KICC is a fitting symbol of what the Moi regime took from us. Karma got Kanu in the end!

 There were other, more sobering sights last week. As our new Minister for Justice and Constitutional Affairs led surviving "alumni" through the now closed torture cells in the basement of Nyayo House, I realised I knew most of those who accompanied him. I know how their ordeals have affected their entire families. I know they will live with what happened to them in Nyayo House for the rest of their lives.

Yet I still cannot grasp that this happened here. Not in apartheid South Africa. Here. Worse, it happened for reasons that seem ludicrous today, a decade after the end of the Cold War – for owning a "banned publication" or being a "Libyan spy..."

But we cannot deny knowledge of it. We all know the joke about the secret-police antelope hunt. The object is to run into the forest and return with a dead antelope in the shortest period of time. The CIA agent is back with his trophy in a couple of minutes, as is the Mossad agent. The Kenyan Special Branch guy never returns. After an hour or so, his worried colleagues go looking for him and find him whipping a warthog strung up between two trees, "Confess! You’re an antelope..."

Actually, for ruthlessness, compared with the CIA and Mossad, our erstwhile Special Branch were in the boy’s league. Nor is torture a laughing matter. Still, that torture entered our popular culture in this way, shows there was widespread knowledge that it was routinely used by the state.

So we, the complicit and impotent public, knew. For that reason, NARC is not going to find it all that easy to make us "forgive and forget." The demands for transitional justice are mounting with each passing day.

But how is this justice to be achieved? While it is a little rich of the former ruling party to cry foul and rant about the rule of law – it repeatedly and openly flouted the law when it was in power – Justice Richard Kuloba has ruled in its favour and stayed the takeover of the KICC, pending appeal.

This setback makes one thing clear. With respect to economic crimes and the need to recover illegally diverted public assets and properties, including land, the government will have to approach individual cases from an unassailable legal standpoint. Legislation exists that is already being used for individual cases. The problem is the scarcity of evidence and the time it takes to get cases through the courts. The alternative is new legislation to enable recovery of stolen assets collectively.

With respect to gross human-rights violations and political crimes too, legislation exists to enable prosecution of individual cases. But cases with more than one complainant, such as the survivors of torture and detention without trial, the Wagalla massacre, the ethnic clashes and so on, require laws that will allow for their collective resolution. Allowing class actions may be one way forward. Because, despite all the talk of a Truth and Reconciliation Commission, we are not yet agreed on one fundamental thing – whether or not to allow for impunity. The South African model went for truth over legal justice in this sense. The Rwandan model refused to allow for impunity. Regional and international human-rights standards do not allow for it either.

The question is, why then should we? Why harp on the rule of law when it comes to property, but not when it comes to persons? The victims have not collectively agreed to a process allowing for impunity. If and when they decide that legal justice is not the only form of justice, then we can talk of using the South African model.

Meanwhile, those now arguing for the rule of law with respect to economic crimes should take note. Their arguments may come back to haunt them with respect to human-rights violations and political crimes.

L. Muthoni Wanyeki is executive director of the African Women's Development and Communication Network (Femnet)

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