Why Kenya must develop effective policies and laws on reparations

The 2007-2008 post-election violence (PEV) was a dark moment in our history, resulting in deaths of over 1,200 Kenyans and displacement of more than 650,000 people. The quest for justice has been bumpy, leaving many victims feeling devastated. In 2014, Keriako Tobiko, the then Director of Public Prosecutions, dropped over 4,000 criminal cases including alleged acts of rape, murder, and arson. He argued that the cases did not meet the necessary prosecutorial threshold.

At the International Criminal Court, the Kenyan cases ultimately collapsed due to witnesses recanting their statements and Kenya’s failure to cooperate with the court. As a result, the only remaining avenue for justice appeared to be through the Kenyan courts. On November 24, 2011, the Kenya Human Rights Commission and 28 petitioners filed a suit against the government seeking to enforce the fundamental rights of internally displaced persons violated during the post-election violence of 2007 and 2008. This petition was based on four key issues; injury to person, loss and damage to property, loss of life, and gender and sexual-based violence (SGBV). Thirteen years later, this case remains unresolved, leaving victims wondering whether justice will ultimately serve as their shield and defender.

A significant judgment was issued by the High Court on December 10, 2020 in Constitutional Petition No. 122 of 2013. The court found the government responsible for failing to conduct independent and effective investigations and prosecutions of SGBV-related crimes during the 2007/2008 PEV. However, this decision was marred by the fact that the court recognised the harms endured by only four out of the eight survivor-petitioners.

The issuance of a public apology for all State injustices committed since independence along with the announcement of a Sh10 billion Restorative Justice Fund for victims of past violations by President Uhuru Kenyatta was intended to signify the beginning of a new era for reparations. However, 10 years later, this fund is yet to be operationalised. Although there were efforts in 2017 to develop regulations and a draft policy by the Office of the Attorney General, the Kenya National Commission on Human Rights, and Kenyans for Truth, Justice, and Reconciliation, aimed at operationalising the fund, progress has been hindered by a lack of political goodwill.

Since 2007, Kenya has held four elections, with three of them - 2007, 2017, and 2022 - marked by serious violations. These events have left many victims and survivors seeking justice, accountability, and reparations. Subsequent governments, including the current one, have pledged to enact policies and legislation aimed at providing reparations. However, more than two years into President William Ruto’s term, this promise remains unfulfilled.

The normalisation of violations by State agencies, particularly the police, has been a defining feature of Kenya’s governance since independence. The unlawful arrests of over 1,400 protestors, the disappearance of 89 human rights defenders, and the killing of over 65 protestors during the Gen Z protests serve as stark reminders of Kenya’s troubled past.

Many victims of serious human rights violations have yet to receive any form of reparations and assistance from the State. The National Assembly and Senate should urgently enact legislation that will robustly provide for reparations for these violations.

Senior Programme advisor, Transitional Justice, Kenya Human Rights Commission