Kenya National Dialogue and Reconciliation

Longer Term Issues and Solutions: Constitutional Review

Background
Recalling the 1 February 2008 agreement by the Parties to deal with long-term issues and solutions that may have constituted the underlying causes of the prevailing social tensions, instability and cycle of violence, and recalling the substantial discussions that have been held concerning constitutional reform over recent years, the Parties to the Kenyan National Dialogue and Reconciliation agree to the following general parameters and principles for the establishment of a constitutional review processes.

General principles and stages of the process

The parties accept that the constitution belongs to the people of Kenya who must be consulted appropriately at all key stages of the process, including the formation of the process itself, the draft, the parliamentary process and any final enactment. There will be five stages in the review of the Constitution and there will be consultation with stakeholders in each stage:

An inclusive process will be initiated and completed within 8 weeks to establish a statutory Constitutional Review including a timetable. It is envisaged that the review process will be completed within 12 months from the initiation in Parliament.

Parliament will enact a special ‘constitutional referendum law’ which will establish the powers and enactment processes for approval by the people in a referendum.

The statutory process will provide for the preparation of a comprehensive draft by stakeholders and with the assistance of expert advisers.

Parliament will consider and approve the resulting proposals for a new constitution.

The new constitution will be put to the people for their consideration and enactment in a referendum.

Kenya National Dialogue and Reconciliation

Independent Review Committee

Terms of Reference

The members of the Panel of Eminent African Personalities (The Panel), together with the Parties to the National Dialogue and Reconciliation:

Recalling the 14 February 2008 agreement by the Parties, witnessed by H.E. Kofi Annan for the Panel of Eminent African Personalities, to establish an Independent Review Committee, a non-judicial body, which would be mandated to investigate all aspects of the 2007 Presidential Election and make findings and recommendations to improve the electoral process;

Agreed that the Independent Review Committee (IREC) will be established under the

Commissions of Inquiry Act, and will conduct its mandate in accordance with the following Terms of Reference:

Key Activities

The activities of the IREC shall be:

a. Analysis of the constitutional and legal framework to establish the basis for the conduct of the 2007 elections and to identify any weaknesses or inconsistencies in the electoral legislation;

b. Examination of the organizational structure, composition, and management systems of the Electoral Commission of Kenya (ECK) to assess its independence, capacity and functioning during the preparation and conduct of the 2007 elections;

c. Examination of the public participation in the 2007 electoral process and the electoral environment, including the roles and conduct of the political parties, media, civil society and observers;

d. Investigation of the organization and conduct of the 2007 electoral operations including: civic and voter education; training; voter registration; logistics and security; polling and counting; vote tabulation and results processing; and dispute resolution;

e. Investigation into the vote counting and tallying for the entire election with special attention to the presidential elections in order to assess the integrity of the results and make recommendations for improvements, adjustments or overhaul of the system.

f. Assess the functional efficiency of the ECK and its capacity to discharge its mandate;

g. Proposal of recommendations on electoral reform including constitutional, legislative, operational and institutional aspects, as well as on accountability mechanisms for ECK Commissioners and staff pertaining to electoral malpractices, in order to improve future electoral processes;

h. Presentation of its findings on the above activities;

i. Any other tasks that the IREC may deem necessary in fulfilling its mandate.

National Cooperation

All national authorities whose activities have a substantive relationship to the above activities are requested to extend maximum cooperation to the IREC. The IREC shall be permitted access to all electoral materials

Composition

The IREC will comprise seven members, including a Chair, all of whom having the highest professional standing and personal integrity. The Chair will be an internationally recognized eminent jurist. The other members of the Committee will be experienced electoral experts:

• Four will be Kenyan, two of whom will be nominated by the Government/PNU and two nominated by the ODM.

• The remaining three members will be international experts, nominated by the Panel, following consultation with the Government/PNU and the ODM.

A Support Office will be established to provide substantive and administrative support to the Committee. It will be based in Nairobi and headed by an international electoral expert.

Methodology

In the performance of its functions, the Committee:

a. Shall hold public hearings in Nairobi and at such other places as it shall deem necessary for the proper discharge of its mandate;

b. May hold private hearings whenever it becomes necessary to instil confidence in the people appearing before the committee or to allay their fears of adversity or reprisals;

c. May carry out or cause to be carried out such studies or research as may inform it on its mandate;

d. May receive written memoranda from individuals and groups on all issues relevant to its mandate;

e. Shall have access to all the electoral and related documents necessary for the effective discharge of its mandate;

f. Shall publish its rules of procedure in the Kenya Gazette; and

g. Subject to the foregoing, the Committee shall develop its own work plan and procedures.

Outputs and Timeline

The IREC should start its work no later than 15 March, 2008. Within three to six months of the commencement of its work, the IREC will produce a final report of its findings and recommendations that will be submitted to the President, with a copy to the Panel. The report will subsequently be made public, in English and Swahili, within 14 days of submission.

Financing/Logistics

The Committee will be funded by the Kenyan Government and the Trust Fund for

National Dialogue and Reconciliation, and with logistic support from the African Union and the United Nations.

Kenyan National Dialogue and Reconciliation

Truth, Justice and Reconciliation Commission

Background

Recalling the 14 February 2008 agreement by the Parties for a Truth, Justice and

Reconciliation Commission, and in a spirit of reconciliation and national healing;

The Parties to the Kenyan National Dialogue and Reconciliation agree to the following general parameters and principles for the establishment of such a commission:

General Parameters

A Truth, Justice, and Reconciliation Commission (“the Commission”) will be created through an Act of Parliament, which will be adopted by the legislature within the next four weeks. The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. The Commission will also inquire into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. Other historical injustices shall also be investigated.

The Commission will inquire into such events which took place between December 12, 1963 and February 28, 2008. However, it will as necessary look at antecedents to this date in order to understand the nature, root causes, or context that led to such violations, violence, or crimes.

The Commission shall receive statements from victims, witnesses, communities, interest groups, persons directly or indirectly involved in events, or any other group or individual; undertake investigations and research; hold hearings; and engage in activities as it determines to advance national or community reconciliation. The Commission may offer confidentiality to persons upon request, in order to protect individual privacy or security, or for other reasons. The Commission shall solely determine whether its hearings shall be held in public or in camera.

No blanket amnesty will be provided for past crimes. Individual amnesty may be recommended by the Commission in exchange for the full truth, provided that serious international crimes (crimes against humanity, war crimes, or genocide) are not amnestied, nor persons who bear the greatest responsibility for crimes covered by the Commission. The Commission will complete its work and submit a final report within two years. The final report shall state its findings and recommendations, which will be submitted to the President and will be made public in fourteen days and tabled in Parliament.

Guiding Principles

The Commission will reflect the following principles and guidelines, taking into account international standards and best practices:

Independence: The Commission shall operate free from political or other influence. It shall determine its own specific working methodologies and work plan, including for investigation and reporting, and will set out its own budget and staff plan.

Fair and balanced inquiry: In all of its work, the Commission shall ensure that it seeks the truth without influence from other factors. In representations to the public through hearings, statements, or its final report, the Commission shall ensure that a fair representation of the truth is provided.

Appropriate powers: The Commission shall be given powers of investigation, including the right to call persons to speak with the Commission, and powers to make recommendations that shall be considered and implemented by the government or others. These recommendations may include measures to advance community or national reconciliation; institutional or other reforms, or whether any persons should be held to account for past acts.

Full cooperation: Government and other State offices shall provide information to the

Commission on request, and provide access to archives or other sources of information. It is urged that other Kenyan and international individuals and organizations also provide full cooperation and information to the Commission on request.

Financial support: The Parties encourage strong financial support to the Commission. It is expected that the Government of Kenya will provide a significant portion of the Commission’s budget. Other funding may be obtained by the Commission from donors, foundations, or other independent sources.

Selection and Composition
The Commission will consist of seven members, with gender balance taken into account.

Three of the members shall be international. The members shall be persons of high moral integrity, well regarded by the Kenyan population, and shall include a range of skills, backgrounds, and professional expertise. As a whole, the Commission shall be perceived as impartial in its collectivity, and no member should be seen to represent a specific political group. At least two but no more than five of the seven commissioners should be lawyers.

In keeping with international best practices, and to ensure broad public trust in and ownership of the process of seeking the truth, the national members of the Commission shall be chosen through a consultative process. The Commissioners shall be named no more than eight weeks after the passage of the Act that establishes the Commission. The three international members shall be selected by the Panel of Eminent African Personalities, taking into account public input.

Kenyan National Dialogue and Reconciliation

Commission of Inquiry on Post-Election Violence

Background

Recalling that the Parties have previously agreed to:

Identify and agree on the modalities of implementation of immediate measures aimed at:

• Ensuring the impartial, effective and expeditious investigation of gross and systematic violations of human rights and that those found guilty are brought to justice.

And have expressed a commitment to:

• Identification and prosecution of perpetrators of violence, including State security agents

• Addressing issues of accountability and transparency

The Parties to the National Dialogue and Reconciliation, together with the Panel of Eminent African Personalities (The Panel), agree to the establishment of a Commission of Inquiry on Post-Election Violence (Commission of Inquiry).

This Commission of Inquiry will be a non-judicial body mandated

 (i) to investigate the facts and surrounding circumstances related to acts of violence that followed the 2007 Presidential Election,

 (ii) investigate the actions or omissions of State security agencies during the course of the violence, and make recommendation as necessary, and

 (iii) to recommend measures of a legal, political or administrative nature, as appropriate, including measures with regard to bringing to justice those persons responsible for criminal acts. The Commission of Inquiry aims to prevent any repetition of similar deeds and, in general, to eradicate impunity and promote national reconciliation in Kenya.

Key Activities

The activities of the Commission shall be:

To investigate the facts and circumstances related to the violence following the 2007 Presidential election, between December 28, 2007 and February 28, 2008.

• To prepare and submit a final report containing its findings and recommendations for redress, any legal action that should be taken, and measures for future prevention.

• To prepare and submit a final report containing its findings and recommendations for redress, any legal action that should be taken, and measures for future prevention.

• To make recommendations, as it deems appropriate, to the Truth, Justice, and Reconciliation Commission.

National Cooperation

Kenyan authorities, institutions, parties, and others shall fully cooperate with the Commission of Inquiry in the accomplishment of its mandate, in response to requests for information, security, assistance or access in pursuing investigations, including:

• Adoption by the Government of Kenya of any measures needed for the Commission and its personnel to carry out their functions throughout the national territory with full freedom, independence and security;

• Provision by the Government of Kenya and all Kenyan State institutions of all information in its possession which the commission requests or is otherwise needed to carry out its mandate, with free access provided for the Commission and its staff to any archives related to its mandate;

• Freedom for the Commission to obtain any information it considers relevant and to use all sources of information which it considers useful and reliable;

• Freedom for the Commission to interview, in private, any persons it judges necessary;

• Freedom for the Commission to visit any establishment or place at any time; and

• Guarantee by the Government of Kenya of full respect for the integrity, security and freedom of witnesses, experts and any other persons who help in its work; The Parties call upon States, relevant UN and AU bodies and, as appropriate, national and international humanitarian or other nongovernmental organizations to provide information to the Commission of Inquiry related to post-election violence, to make such information available as soon as possible and to provide appropriate assistance to the Commission.

Composition

The Commission of Inquiry will be composed of three impartial, experienced, and internationally respected jurists, or experts in addressing communal conflict or ethnic violence. Two of these shall be international, and one shall be Kenyan. They shall be selected by the Panel following consultation with the Government/PNU and the ODM, and appointed by the President.

A Support Office, based in Nairobi and with adequate expert staff, will be established to provide support to the members of the Commission.

Methodology

The Commission of Inquiry shall develop its own work plan and procedures. These will be guided in all respects by principles of fairness, impartiality, transparency, and good faith.

Outputs and Timeline

The Commission of Inquiry will start its work within 30 days following the appointment of its members. It will operate for three months, with an additional month if required. At the conclusion of its work it will submit a final report of its findings and recommendations to the President of Kenya, with a copy to the Panel. Main findings of the report will be made public within 14 days of submission, although certain aspects of the report or annexes may be kept confidential in order to protect the identity of witnesses or persons accused.

Financing/Logistics

The Commission of Inquiry will be funded by the Kenyan Government and the Trust Fund for National Dialogue and Reconciliation, including support from donor states or foundations. It will receive logistical support from the AU and the UN.