Institutional re/membering: collective memory and the South African and Kenyan truth and reconciliation projects.

AuthorBaraza, Masha
  1. Introduction

    In February 2008 Kofi Annan called on Kenya to establish a truth and reconciliation commission to help heal the nation following the violent aftermath of the controversial December 2007 elections. During this period of organised and spontaneous protest, organised militia activity and disproportionate use of force by the Kenyan police force and paramilitary forces over 1,500 people were killed 600,000 people internally displaced. (1) But even before the post-election violence there had been perennial calls for the establishment of a truth forum to handle the atrocities committed as early as during the pre-independence emergency period of the 1950's, the 'KANU years' during the presidencies of Jomo Kenyatta and Daniel Moi from 1963--2002 including the tribal clashes of 1992, 1997 and since then the persistent ethnic violence in the Rift Valley and parts of coastal and western Kenya. On the 23rd of October 2008 the Parliament of the Republic of Kenya passed into law Act No. 6 of 2008: The Truth, Justice and Reconciliation (TJRC) Act that came into force on 9 March 2009. In light of these developments, what lessons can we draw from the most widely debated and analysed truth and reconciliation structure, the quintessential South Africa Truth and Reconciliation Commission (SATRC)?

    Though the discourse concerning the SATRC is indeed voluminous, far from allaying continued academic engagement, I contend that this illustrates the fecundity of its numerous dimensions and the complexity of the issues surrounding this exceptional commission and its unique context. Normatively, the SATRC has "become the model for all future commissions ... the new standard setting model of the practice;" (2) in this regard, the commonly advocated resort to similar fora to reunite and reconcile populaces after periods of mass unrest, violation or violence, such as those experienced in Kenya, justifies continued analysis of the SATRC. As Minnow explains, " truth commissions should be an important part of the national and international repertoire of responses to mass violence." (3) Indeed perhaps it is only now with the passage of time that we can truly appreciate and analyse the dynamics and legacy of this structure.

    The SATRC was to be a publicly conducted "quest for truth aimed at [achieving] national unity and reconciliation." (4) This paper focuses on the second aspect of that mandate: reconciliation; and contends that memory and mnemonics form an important and inexorable epistemological context within which the debate as regards the SATRC's attempt to achieve reconciliation ought to be based. Exploration of memory and reconciliation exposes a paradox within the memory discourse and highlights the aporia: can and should a TRC endeavour to foster/ensure reconciliation through the mediation and determination of 'collective' memory? The debate herein therefore, is not whether the SATRC was a successful endeavour or not, whether or not it achieved its lofty objectives, most importantly national reconciliation; it is rather trying to reveal the challenges faced by the SATRC in regard to memory and reconciliation and trying to distil lessons from this in regard to the Kenyan context and its recently initiated truth and reconciliation process. Taking into consideration the conclusions drawn from the South African experience, the paper hypothesises on the challenges that Kenya's TJRC will have to grapple in regard to moulding collective memory through public presentations of the truth towards fostering reconciliation and national unity.

    The paper begins with a brief introduction of the South African and Kenyan contexts. It then moves to discuss the concept of reconciliation and the SATRC's particular notion of the term, both applied and in principle. The paper then examines the dynamic between reconciliation, forgiveness and forgetting asserting that the latter two processes became constitutive of the SATRC's notion of reconciliation. Following this examination we introduce a hypothesis on memory, analysing its inherent public/private dynamic in whose paradox the challenge for the SATRC in fostering a collective memory lay. The paper draws conclusions from the above analysis, considering a selection of literature within this discourse towards distilling lessons from the SATRC experience. The paper concluded by assessing these conclusions in light of Kenya's quest to establish a truth and reconciliation commission.

  2. The South African and Kenyan Contexts

    2.1 The South African Context

    The SATRC was setup under the promotion of National Unity and Reconciliation Act No. 34 of 1995 to provide for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed during South Africa's apartheid experience from the month of the Sharpeville Massacre in March 1960 to its end in 1994. This experience constituted the institutional segregation and racist exclusion of non-whites in practically all aspects of life, social, economic, cultural and political. The central policy prescription facilitated the forced removal of non-whites from urban areas and areas of white settlement and their relocation in 'bantustans' and native reserves in order to control the African native and to organise and restrict the much needed migrant labour. "By 1990 half of South Africa's black population lived in the Bantustans, which together accounted for only 14 percent of the land in the country. A large slice of this population was the victim of forced removal." (5) In addition to the general systematic terror and administratively led justice that characterised everyday life under apartheid, protests and resistance to this oppression, such as the Sharpeville 1960, Durban 1973, Soweto 1976 uprisings, were met with brutal and ultimately lethal crackdowns from the administrative forces of the apartheid government resulting in widespread human suffering and gross human rights violations including murders, disappearances, torture and arbitrary imprisonment.

    The SATRC presented the final portion of its report in March 2003, concluding the process that began in December 1995. The SATRC consisted of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty and a Committee on Reparation and Rehabilitation. Together they were mandated to determine the fate or whereabouts of the victims of the human rights violations; grant amnesty to those who made full disclosure of all the relevant facts relating to acts associated with a political objective committed during the relevant period; afford victims an opportunity to relate the violations they suffered; take measures aimed at granting reparations to victims as well as measures aimed at rehabilitation and the restoration of the human and civil dignity of victims of human rights violations; to report to the nation about such violations and victims and make recommendations aimed at the prevention of the future violations. The SATRC therefore focused on addressing gross human rights violations under apartheid.

    2.2 The Kenyan Context

    There had been concerted calls for the establishment of a truth commission in Kenya since the democratic political transition of 2002 during which the 24 year rule of President Moi and his KANU party was brought to an end and President Kibaki installed as the nation's leader. On April 17, 2003, the new Kibaki administration appointed a Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission (Task Force) mandated to "find out if a truth commission was necessary for Kenya, and, if so, to make recommendations on the type of truth commission that ought to be established." (6)

    The Task Force held public meetings, hearings and discussion panels with the full range of stakeholders, conducting these fora in each province of the country. They widely disseminated their mandate and mechanisms through the media and partnerships with a variety of governmental bodies and non-governmental organisations. They also organised conferences including an international conference attended by Archbishop Desmond Tutu and Dr. Alex Boraine respectively the Chair and Vice-Chair of the SATRC amongst other notable academics, practitioners and activists. According to the Task Force Report these fora " ... afforded Kenyans an opportunity to appreciate the necessity and complexity of a truth telling and justice seeking process. But it also made clear that a truth commission is one mechanism for cleansing and transforming the moral and political fibre of the nation." (7) The Task Force recommended that an independent Truth, Justice, and Reconciliation Commission (TJRC) covering the period from 1963-2002 with comprehensive power of summons and investigation be established no later than June 2004 constituted by persons of high moral integrity, to investigate and hear in public human rights violations and violations of economic, social and cultural rights; recommend redress such as restitution, compensation, and reparations; recommend lustration or the barring of offenders from holding public office; track down stolen public property and funds and recommend their return to the state or the individuals from whom they were stolen; negotiate with perpetrators of economic crimes for the return of stolen property and funds in exchange for recommendations of limited amnesty and immunity; recommend prosecutions of offenders. It also recommended that the Government of Kenya establishes a committee or similar institution to examine the atrocities of the colonial period and make recommendations on how they ought to be addressed.

    Despite intermittent calls for the establishment of the Commission, there was little action in setting up the mechanism until after the post-election violence in late 2007 and early 2008. Following this violence that resulted in the death of thousands...

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