Tribalists in Kenya will soon face the law – no more employment along tribal lines

Publisher: Korir, africanpress@getmail.no source.standard.ke

This is a good step for the Kenyan people. Employment along tribal lines is unacceptable and must be discouraged by all peace loving people. Now that the government is publishing a bill to curb the situation, the Kenyan people should be vigilant and report those who will not obey the law when it comes into force. API

Government declares war on tribalists

The Government has finally conceded tribalism is a national problem that needs serious remedial attention.Consequently, if you are one of those who ever felt that your application for employment was rejected because the appointing authority was favouring his or her tribesmen, and women, you may soon have an office with which to register your complaints.

You may also soon have a chance to legally raise alarm and ask the Government to investigate an institution you have reason to believe is recruiting staff or conducting its affairs on tribal lines.

At the same time, Government officers who may have violated the rights and committed abuses on Kenyans by virtue of their offices have reason to worry.

Coming alongside the Ethnicity Bill is that on Truth, Justice and Reconciliation, which will be charged with establishing an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on individuals by the State, public institutions and public officers since December 1963.

The National Ethnic and Race Relations Commission Bill, published this week, is a product of a realisation that lasting peace and co-existence can only be realised if communities cultivate goodwill and have access equal to opportunities.

The Bill seeks to give the Government powers to “deal effectively with the negative aspects of tribalism and ethnicity, which have pervaded various levels of the Kenyan society”.

The publication of the Bill may mark the beginning of the end for those who have thrived on hate speech and making fun of the cultural practices of other communities, making them look like lesser beings.

The Bill seeks to establish the National Ethnic and Race Relations Commission whose mandate will be, among others, to eliminate all forms of discrimination based on ethnicity.

The Commission will also discourage persons, institutions, political parties and associations from advocating or promoting discrimination or discriminatory practices on the ground of ethnicity.

“The Bill is borne of the realisation that lasting peace and co-existence cannot prevail unless various communities cultivate goodwill and have equal access to opportunities that may arise without discrimination grounded on ethnicity,” the Bill states, in its Memorandum of Objects and Reasons.

Further, it will promote tolerance, understanding and acceptance of diversity in all aspects of national life and encourage full participation by all ethnic communities in the social, economic and political life of other communities.

Should it come to pass, Kenyans will legally be required to respect the religious, cultural, linguistic and other forms of diversity in a plural society.

The Commission will also be required by law to promote equal access and enjoyment by all ethnic communities to public or other services and facilities provided by the Government.

The issue of access to public resources and employment in public institutions was a critical issue in the election campaigns last year, with claims that certain institutions were hiring on tribal lines. The Government denied the claims.

The Bill is, however, pushing for the establishment of a commission that will investigate complaints of ethnic or racial discrimination and make recommendations to the Attorney General or the Kenya National Human Rights Commission on the remedies.

That commission will have powers to recommend to the Government the criteria for deciding whether any public office or officer has committed acts of discrimination on grounds of ethnicity.

Another critical role is to identify and analyse factors barring harmonious relations among communities and recommend how these can be overcome.

The commission will recommend criteria for deciding if a public officer has committed acts of discrimination based on ethnicity as well as monitor legislation with implications on equal opportunities and ethnic relations with proposals for revision of such legislation.

It will have the added task of recommending penalties to be imposed for any breach of the provisions of the Constitution or any law dealing with ethnicity.

The Truth, Justice and Reconciliation Commission Bill will have powers to investigate abuses and violations running from December 12, 1963, the day Kenya became independent, to February 28, the day President Kibaki and Prime Minister Raila Odinga signed a power sharing deal that ended the country’s worst case of violence, with attempts to make the chaos appear ethnic.

The Justice Commission will have powers to investigate circumstances in which such violations were committed, listen to the victims and establish the motives of the persons who committed the violations.

Such violations will include massacres, sexual violations, murder and extra-judicial killings. The Commission will establish who was responsible.

Also to be investigated by the Justice Commission is grand corruption and the exploitation of natural or public resources.

The Justice Commission will also delve into the explosive issue of land, particularly illegal acquisitions of public land, and making recommendation on the repossession.

It will inquire into misuse of public institutions for political objectives. Further, the justice commission will inquire into acts of State repression including torture, cruelty and degrading treatment for political objectives.

There will be no amnesty under the proposed law. Those who want amnesty will have to apply for it, if investigations show that they did not take part in acts of commission of omission that constitute crimes against humanity or genocide “within the meaning of international human rights law”.

Those wishing to apply for such amnesty must do so within one month after the commission announces this.

The commission, the Bill says, shall give priority to those in custody and prescribe measures in respect of such applications after consultations.

After this, the applicant may be asked to provide further particulars and the Commission may make “such enquiries as it may consider necessary”.

Investigations will follow after which the applicant may be informed of his fate or accorded the chance to make further submissions. The application could be rejected summarily after a probe and the applicant informed accordingly, the Bill says in Section 36 (3) C.

“If the Commission is satisfied that there is no need for a hearing upon an application and investigation under this section, the Commission shall recommend amnesty and inform the applicant accordingly,” says Section 4.

The Bill says that the commission may recommend amnesty for violations committed between December 12, 1963 and February 28, provided that all relevant facts are disclosed and other requirements of the Act are met.

It goes on to say that whether an act, omission or offence “is an act of gross human rights violation shall be decided with reference to the motive of the person who committed the offence”.

Other criteria to be considered will be the context in which the act took place, the legal and factual nature of the act and its gravity.

The commission will consider the objective, especially whether the act or offence, was primarily directed at a political opponent or State property or personnel or against private property or individuals.

The relationship between the offence and objective pursued will be considered along with the directness and proximity of that relationship but will exclude persons who acted for personal gain or out of personal malice, ill will or spite directed against the victim.

If any persons are recommended for amnesty, the commission shall gazette their names, along with sufficient information to identify the act or offence for which the amnesty is recommended.

But if amnesty is recommended to any person for an offence, which has formed the grounds for a civil judgement delivered before the granting of the amnesty, the judgement will not be affected by such an amnesty.

If the commission refuses any applications for amnesty, it will notify the applicants in writing “as soon as practicable, giving reasons for its refusal to the person who applied or any person who may be a victim”.

The new law allows any person who feels they may have suffered harm as a direct consequence of gross violation of human rights to apply to the commission for reparation. If they prove their case, the commission may make recommendations to restore the human and civil dignity of such a victim.

The commission will, thereafter, recommend the basis and conditions for such reparation, the authority responsible and measures that may be taken to grant “urgent interim reparation to the victims”.

The commission will be a corporate body charged with the responsibility of promoting peace, justice, national unity, healing and reconciliation among the people of Kenya.

It is borne of the realisation that lasting peace and co-existence “cannot prevail unless historical injustices, violations and abuses of human rights have been addressed”.

The Bill stems from the discussions of the National Dialogue and Reconciliation Committee formed after the political crisis following the disputed December 27 presidential election.

The crisis brought to the surface deep seated and long-standing divisions within the Kenyan society and to heal those divisions, a raft of constitutional, legal and political measures were proposed, among them the formation of a commission to deal with historical injustices and human rights violations.

Says the Bill: “The establishment of the Commission was conceived with a view to addressing historical problems and injustices, which, if left unaddressed, threatened the very existence of Kenya as a modern society.”

The Commission’s members will be vetted by a selection panel, after which their names will be forwarded to the President for appointment. It will have 15 members.

The commission will submit a report to the President after its deliberations. The report will be tabled in Parliament.

It will be dissolved three months after it hands in its report to the President, in which time, it will have wound up its activities. It will have a two-year lifespan from the date of its inauguration.

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