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www.marsgroupkenya.org The truth commission, in its investigation of land and ethnic clashes, shall pay particular attention to historical claims and distortions brought about by colonialism. These historical problems were not addressed, and have in fact been compounded by post-colonial governments. Further, the Task Force recommends that the government expand the mandate of the recently appointed land commission to fully investigate and settle historical land problems with finality. 6. Violations of Economic, Social and Cultural Rights Economic crimes are a difficult matter to investigate and establish culpability. Quite often, white-collar criminals are adept at covering their tracks and concealing the chain of evidence. Human rights violations or bodily integrity violations, on the other hand, are easier to verify and establish because human bodies are the primary evidence. That is why most truth commissions have found it difficult to address economic crimes. Even so, economic crimes are so intertwined with human rights violations that it is impossible to establish watertight compartments between the two types of violations. This is more so in the Kenyan case where economic crimes were committed as part and parcel of human rights violations. Land, for example, is an economic asset, and the killing or forcible eviction of the lawful owners from their lands constitutes both economic crimes and human rights violations. Similarly, the looting of the public purse and the stealing of public monies in bank accounts at home or abroad has translated into a collapsed infrastructure and economic decomposition. Deaths on Kenya’s horrible roads, the absence of medicines and hospital equipment, the pathetic state of Kenyan schools, and a host of other ills are directly attributable to the theft of public funds and property by previous governments over the last forty years. Economic crimes lead to the violations of the entire gamut of human rights, and in particular of economic, social and cultural rights. It is a well-established fact in human rights law that all human rights – including economic, social and cultural rights – are indivisible, interdependent, and interrelated. Thus human rights law does not only refer to civil and political rights. The Republic of Kenya has an internationally binding obligation to protect all human rights, that is, civil and political rights, and economic, social and cultural rights because it is a signatory to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. That is why a truth commission should investigate the violations of civil and political rights as well as those of economic, social and cultural rights. It is important to note that violations of economic, social and cultural rights disproportionately affect both women and children. These include the rights to shelter, education, water, work, health, and a host of others. Kenya is a patriarchal society in which women and children are the most vulnerable individuals, and on whom the violations of economic, social and cultural rights have the greatest impact. This is a matter to which the truth commission ought to pay special attention. www.marsgroupkenya.org 22
www.marsgroupkenya.org The Task Force realizes that a truth commission should not investigate the bulk of economic crimes because the Goldenberg Commission and other state offices are looking into them. In addition, economic crimes, due to their complexity, are very difficult to investigate. Yet, the Task Force believes that a truth commission should investigate a selected set of economic crimes that directly lead to the violations of economic, social and cultural rights. A few examples will suffice. The failure by a contractor for the production and provision of clean and safe drinking water because of fraud or theft of public funds resulting in ill health or deaths ought to be the subject of an investigation by a truth commission. The same should be true for the grabbing of public land to displace a school, a community cultural center, or other public amenities. A fraudulent contract for providing medical supplies could also be the subject of scrutiny. In other words, a truth commission should address a selected set of economic crimes that have a direct bearing on the enjoyment of economic, social and cultural rights. It is the view of the Task Force that the truth commission ought to be given powers to negotiate with perpetrators of economic crimes for the return of public property, wealth, and monies in exchange for recommendations for a limited amnesty or immunity from prosecution. The truth commission should be empowered to establish a Victim’s Compensation and Rehabilitation Fund from such property and funds 4. on 04 Feb 2010 at 5:31 pm4Wagalla Massacre - Nun Who Saw It All And Died With The Story by John Kamau EA Standard 16.02.2004 Nun Who Saw It All And Died With The Story John Kamau Nairobi, February 16, 2004 (The East African Standard) – The death of a key witness to the Wagalla massacre now means that the horrific details from an independent source may never come to light. About four months ago, just as the government promised to unearth what really happened at the Wagalla airstrip, a lone gunman entered a 300-bed hospital compound in Borama town, Somaliland, and shot dead 60-year-old Italian nun, Dr Annalena Tonelli. Tonelli, declared a persona non grata in Kenya following the Wagalla massacre, had for 20 years remained a key witness, but had not divulged any details of the atrocity and declined any publicity. Aid workers who knew her say she kept the details to herself although it is known that the trained lawyer had taken lots of details and recorded events that followed the massacre. www.marsgroupkenya.org 23
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