Last Wednesday, the Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission publicly presented its report to Kiraitu Murungi, the Minister for Justice and Constitutional Affairs. The central recommendation of the report, which is now public, is that a truth commission must be established immediately.

More than any other single decision, what President Kibaki and Minister Murungi do with the report will speak volumes about Narc’s commitment to political reforms, the fight against corruption and impunity, and democracy. 

It is a fact that two years ago, Kenyans demanded a truth commission when the CKRC collected their views. Even so, Minister Murungi appointed the task force in April this year to determine whether Kenyans want - and need - a truth commission. If so, the task force was to recommend to the government the mandate, scope, powers, and membership of a truth commission. Although prima facie redundant, Murungi’s decision was brilliant. It would avoid doubt and establish with finality the wishes of the people.

Aware of this solemn and somber responsibility, the team designed an open, bias-free, and inclusive process and methodology to carry out its mandate. First, it conducted widely publicised and well attended public hearings in all eight provinces. It visited at least three districts in every province and listened to hundreds of Kenyans from all ethnic groups, religions, races, genders, and social classes. 

Secondly, it openly solicited, and received, many written submissions from individuals and groups. Many of the groups, such as the NCCK and Supkem represent millions of Kenyans. The team also benefited from consultations with opinion leaders from across the political divide. Literature review and commissioned scholarly papers on truth commissions were invaluable to the team's work.

Finally, the team organised two highly successful conferences on truth commissions. The first, a national two-day conference, drew speakers from the width and breadth of Kenya, and gave them an opportunity to vigorously interrogate the need for a truth commission. The conference ended with a strongly-worded resolution demanding the immediate creation of a truth, justice, and reconciliation commission.

In August, the work of the task force culminated in a phenomenal international conference on truth commissions. A galaxy of international stars, headlined by the incomparable Archbishop Desmond Tutu and Professor Ali Mazrui, attended the three-day extravaganza. They included Professor Henry Steiner of Harvard Law School, Justice Albie Sachs of the Constitutional Court of South Africa, Professor Issa Shivji of the University of Dar-es-salaam, and Dr Alex Boraine, the President of the International Centre for Transitional Justice in New York.

The task force based its report on these comprehensive activities. It is important to state that it did not include views of its own. The recommendations and conclusions therein are drawn from what the overwhelming majority of Kenyans said. The team took copious notes and kept precise records of all activities, especially the views of Kenyans. It generated unimpeachable statistics, charts, and other pictorial graphics of its data which inferred that over 90 per cent of Kenyans wanted a truth commission. 

So, what type of a truth commission do Kenyans want? It was clear from their views that Kenyans want a legitimate, independent, and effective truth commission to investigate past atrocities and advance corrective measures. The commission must be established immediately, and in any case, not later than June 2004. It should investigate the period from 1963 to 2002, a manageable timeframe that covers the entire post-independence period. The truth commission should be composed of 11 commissioners, all beyond reproach, drawn from the diversity of Kenya. 

The mandate of the commission should include human rights violations such as political assassinations, so-called ethnic clashes, massacres, such as the Wagalla Massacre in Wajir, extra judicial killings, detentions, torture, gendered violations such as rape, and denials of other basic freedoms. But the truth commission should also investigate select economic crimes that have denied economic, social, and cultural rights. These would include the looting of the public purse, land grabbing, or the plunder of other public resources.

The commission cannot be credible unless it addresses certain economic crimes. That is because human rights violations and economic crimes are intrinsically connected. Systemic human rights violations are committed to perpetrate economic crimes. Here, the truth commission must be selective to avoid duplicating other anti-corruption efforts.

But it should be given the power to track down stolen public property and funds and seek their return. It should be empowered to grant limited amnesty or immunity for full disclosure or return of stolen public wealth. 

The truth commission should be established by presidential order, not by parliament, which would kill the idea. The truth commission should have the power to recommend the prosecution of perpetrators, to summon and compel any one to give testimony, and to seek and receive any public document or record.

It must have the power to recommend lustration, that is, the barring of offenders from holding public office. But the truth commission must also have the power to recommend redress such as restitution, resettlement, compensation, and/or reparations.

The truth commission cannot be a witch-hunt or a whitewash. It must be fair, and seen to be so, and must not target any particular community, or be used to settle political scores. 

I know that there will be a lot of pressure on President Kibaki and Minister Murungi not to set up a truth commission. That pressure will no doubt come from Kanu and officials of its former regime. It will also come from many in Parliament and within Narc. But President and Minister Murungi must understand that the credibility of the Narc government - both national and international - will depend on the implementation of genuine reforms. 

Both must now decide with whom to cast their lot. On the one hand, there is a tiny small core of looters, murderers, thieves, torturers, rapists, and their proxies. On the other, there are democratic reformers, human rights advocates, and common decent Kenyans who constitute over 95 per cent of the country’s population. The choice, as they say, is a no-brainer.

 It is the decent Kenyan majority, not the kleptocracy and its proxies, that voted for President Kibaki and Narc. President Kibaki is the servant of the majority of the Kenyan people. That is why he must grant their plea and establish a truth commission.

Professor Makau Mutua was the chairman of the Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission. He is also the Chair of the Kenya Human Rights Commission.

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