L. MUTHONI WANYEKI
Monday, February 17, 2003
After Such Knowledge, What
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
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,
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
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
Link : http://www.nationaudio.com/News/EastAfrican/24022003/Opinion/Opinion11.html