ICPC Policy Papers
- Thursday, 24 May 2012
The process by which Constitution is made matters. The Constitution-making process can be a transformational one that facilitates peace and stability. If not organized transparently and with public participation, however, the Constitutional process runs the risk of further fracturing the country. The challenge will be for the Committee of Experts to organize this process, ideally through a set of interim rules to ensure transparency and to articulate fundamental Constitutional principles. The process should be more open and transparent, with the drafters deeply informed by outside opinions and suggestions without being necessarily bound by them.
Position Paper on Prosecutorial Accountability Mechanisms For Kenya
In a post-conflict situation, justice and peace are not contradictory but complementary forces. It is argued that the question is not whether to pursue justice and accountability but rather when and how? Justice in post conflict is context specific and requires comprehensive approaches since justice; peace and security are interrelated and interdependent.
This position paper is necessitated by the proposed first amendment to the Constitution of Kenya. Through the Constitution of Kenya (Amendment) Bill, 2011, as recently published, the Government of Kenya vide Cabinet has identified three issues that it proposes to amend namely;
A comprehensive constitutional review has been a priority of the reform movement on the political arena in Kenya since 1990. While the piecemeal reforms of 1991 resulted in the reintroduction of a multi-party system of government, it failed to produce and establish a constitutional democracy.
Kenya does not boast of anything to carry home in terms of its past on appointment of public officers. The past regimes have not demonstrated respect for the rule of law, human rights and general morals of public officers which are the hall marks of a democratic government. Public offices were turned into tools of soliciting bribes at the expense of delivering service to the public.
The formation of a credible and effective TJRC happens to be part of the KTJN’s areas of interest under Agenda No. 4. Agenda 4 emerged out of the former United Nations Secretary-General Kofi Annan led National Dialogue and Reconciliation Process in February 2009 may be viewed as the TJ matrix or programme for Kenya. While we welcome the formation of the TJRC, we feel very much obliged to raise the following issues in regards to its composition and envisaged operations.
The security concept has changed from primarily “national security” to “human security” with a different approach to the subject of security. Human security is an emerging concept for understanding global vulnerabilities whose supporters challenge the traditional notion of national security by contending that the proper referent for security should be the individual rather than the state. Human security holds that a people-centred view of security is necessary for national, regional and global stability.
Vetting is a process of ensuring that post conflict or post authoritarian states have institutions which adhere to minimum standards of integrity. Confidence in public institutions of such countries usually erodes during conflict and/or authoritarian rule and it is only important that public confidence is restored as quickly as possible. Vetting processes assist to prevent the recurrence of human rights abuses.
Requirements for the Vetting and Lustration Legal Framework in Accordance with the Constitution
Countries emerging from armed conflict or authoritarian rule face difficult questions about what to do with public employees who perpetrated past human rights abuses and the institutional structures that allowed such abuses to happen. Kenya is a society in transition. This is because it is a country that has had to endure with a ruthless authoritarian rule and deep entrenched impunity. The 2007/8 post election violence was culmination of this dictatorial state. It also offered a pivotal juncture for redefining the country’s socio-political and economic sphere and confronts the legacy of the past.
International Center for Policy and Conflict (ICPC) believes that there are certain crucial elements that underscore the basics of every constitutional order that vindicates constitutionalism. Briefly discussed and recommended are critical areas that to us will either make or break the constitution making process in Kenya. As an organization we have zeroed our critique and recommendation on seven key areas namely;
The Commission of Inquiry into Post-Election Violence hereinafter referred to as (CIPEV), was established to investigate the violence that occurred after the 27th December, 2007 elections in Kenya. The Commission officially submitted its groundbreaking report to President Mwai Kibaki and Prime Minister Raila Odinga on 15th October 2008 and to the Chair of Panel of Eminent Persons Dr. Kofi Annan on 18th, October 2008. CIPEV was vested with the mandate to investigate the facts and circumstances surrounding the violence, the conduct of State security agencies in their handling of it, and to make recommendations concerning these matters and related matters.