Even though Kenyans endorsed a new constitution that heralds a new political dispensation, the battle for reforms is still on. The endorsement by Kenyans was informed by the country’s dark post-independent past that that heightened: corruption, authoritarianism, nepotism, violation of human rights, repression, impunity and nation decay under the Kenyatta-Moi eras.

This is the legacy Kenyans hope the Coalition Government will strive to erase. As Kenyans embark on the Herculean task of implementation of the new constitution, they too want Transitional Justice.

The appointment in April 2003 of a Task Force on the establishment of a Truth, Justice, and Reconciliation Commission was a milestone in the country’s quest for a transitional justice. It represented a significant first step in the long and arduous journey to reclaim the moral and political fiber of the country. However, Transitional Justice is a broad program, and the truth commission is just one component of that complex phenomenon.

Over 90 per cent of those who submitted their views to the Task Force wanted the government to establish an effective Truth Commission as a vehicle that would expose past atrocities, name perpetrators, redress victims and promote national healing and reconciliation. Kenyans believed that a truth commission would renew morality in the country’s socio-political and economic spheres.

A truth commission is an ad hoc temporary institution. It is an instrument that should only be necessary once in the lifetime of a nation. Currently, issues of credibility surround the head of Kenya’s TJRC: Ambassador Bethwel Kiplagat. The government should have established an effective and credible truth commission that would set Kenya on an irreversible trajectory to democracy.

As it is now, the performance of the TJRC is an emotive issue for the country. It must be appreciated that the quest for democracy, economic prosperity and development are difficult tasks that have no shortcuts. Difficult choices have to be made by the people and government of Kenya if democracy, the rule of law, economic renewal, and respect of human rights are to become a reality.Transitional Justice is an inescapable imperative for countries emerging from decades of gross misrule, abominable human rights violations, and large scale plunder of public resources and shameless graft.

Even with a new constitution, Kenya cannot be recreated without an agenda for Transitional Justice. At the same time, Transitional Justice cannot be achieved unless the mistakes and atrocities of the past are properly, fairly, and comprehensively investigated, the perpetrators held accountable, the state audited, and the country exorcised of the ghosts of the past.

Transitional Justice is neither a matter of theory nor the concern of only academic and human rights advocates. It is a time-tested vehicle for national recovery and reconciliation. It is the one, and the only option for banishing impunity from the national practice and psyche.

Respect for the rule of law must start with the country’s chief executive, for the head of state that is the embodiment of the sovereignty and legality of the state. In fact, successful transitions in other countries have dealt with the question of impunity for former officials, including heads of state, without fear or favour.

In South Africa, for example, former President Nelson Mandela was subjected to sustained scrutiny by the courts on a number of matters. The unrivalled reverence, unprecedented, and iconic status that Mandela enjoys in the world today is largely attributable to the respect that he showed for the rule of law and the transitional process that he set in motion.

In Zambia, Chile and South Korea, former heads of state have been subjected to official investigation for abuse of office. Former public officials who plundered their economies and committed atrocities have nowhere to run because of the emerging jurisprudence of universal jurisdiction, which is evidenced by the creation of the International Criminal Court (ICC).

The peaceful referendum and determination to create a new constitutional dispensation is encouraging, and a testimony to the maturity of Kenyans. Through Transitional Justice, Kenyans want the truth about the past known, the perpetrators identified and the victims accorded justice. Indeed, reconciliation is only possible after the truth is known and justice done.

Precisely, Kenyans need an effective and credible organ, an institution that will not engage in witch-hunt or a whitewash. Such a commission must have the power to recommend lustration, that is, to bar offenders from holding public office. It should also recommend redress for the victims, such as compensation, restitution and reparations.

By Kasembeli Albert.

Kasembeli Albert akasembeli@yahoo.com  is the Editor, Business Journal Africa, a regional monthly business and finance magazine.