JILL: Saga of reparations for victims of protests – where are we now?

In March last year ODM and UDA signed the “10 point agreement”, including the right to peaceful assembly and protests under Article 37 and compensation for victims of protests and riots. Since then, more flesh has been gradually put on the bare bones of this commitment.

Just five months later, the President issued a “proclamation” saying that he established a “coordinating framework for compensation of victims of protests and riots”. The only detail was that the Executive Office of the President would “discharge this mandate” with various relevant State agencies and Prof Makua Mutua was “Principal Co-ordinator”. He also specified that this was about protests since 2017 – thus presumably including the maandamano protests that played a part in the handshake between Raila Odinga and President Uhuru Kenyatta.

The ill-fated panel of experts

A few weeks later a Gazette notice appointed various other people to work with Prof Mutua. This seemed to suggest they would make decisions as to who should get compensation, though they could only recommend to agencies able to take the matter further. But to get to this point they would have had to develop a procedure and assign responsibilities. This was described as "design and establish an operational framework to verify, categorise, and compensate eligible victims”. It mentioned “violence resulting in loss of life and life-altering physical injuries to both civilians and security personnel”.

A court, however, decided that the Proclamation and Gazette notice were unconstitutional because deciding on the framework was within the constitutional remit of the Kenya National Commission on Human Rights (KNCHR).

The Gazette notice was then amended and the words were replaced by “to advise the President on the lawful and constitutional implementation of the reparations framework for victims of public protests and riots, based upon a report prepared by the Kenya National Commission on Human Rights.”

It is unclear why the panel was left in place (minus those people who have resigned). There seems nothing left for them to do.

What has the KNCHR done?

It has said that it was unable to interact with all possible victims/claimants because of lack of resources. So it seems they took over the panel’s role of dealing with individual claimants. It is not clear how far they went in evaluating claims.

They produced a document called Guidelines. They also say that they are working on a Bill and a policy – to provide necessary legal backing. The Guidelines set out what you might call a framework for operationalising the whole idea.

The Process

Their document is called “Human Rights Reparations Guidelines”. They are, of course, right that this is a general issue not limited to recent demonstrations.

The Guidelines seem to envisage two bodies. One is called a “state agency”. Maybe they envisage that this will be the KNCHR itself.

People would be able to apply for “reparations”. The agency would also draw on existing records – including those the commission itself has compiled. People or bodies may apply for reparations for someone else or group of others (this language comes from the constitution – Article 22(2), which makes public interest litigation possible)

Apparently, the idea is not a formal hearing like a court, but that the body that deals with the applications must itself take steps to verify the information it receives, including interviewing witnesses.

It is not clear whether a victim has a right to meet with the agency. Can the agency decide to hold a hearing? Could that hearing be addressed by a lawyer? Would anyone else get notice of the event and have a right to appear?

Nor is it really clear what applicants must prove.

If the agency accepts a claim, it would go to an “implementing agency” – implementing reparations, that is. Does it make sense to have two agencies? Is this supposed to be an existing government body or something new?

Again does the claimant have any role, by submitting arguments for specific reparations? Reparations, the document says, would mean “compensation, rehabilitation, restitution, satisfaction, guarantees of non-repetition or a combination of any of the reparation mechanisms”.

Someone who is unhappy about the decision of one of these bodies can ask for reconsideration. Presumably such a person may take judicial review or complain of a violation of Article 47 – fair administrative procedure. Or even decide” I’m not getting what I need here, I shall go to the courts”.

The Guidelines go much further than the Gazette notice. They include certain vague provisions encouraging the state to do things like making official declarations restoring reputation of victims, facilitating memorialisation of victims, organising trauma counselling, mobility aids, community health centres, schools, scholarships for affected families, education and training, and even equitable use of the Equalization Fund to reduce marginalisation.

And Guideline 15 requires (how can it require?) the state to ensure accountability by public officers through investigations and prosecution, relevant law reforms, adequately resource constitutional commissions and independent office (the constitution already requires this), and ratifying relevant treaties.

Basically all this is no better than a sermon.

Compensation

Comments have focussed on this aspect. Again, the Guidelines go beyond the Gazette notice to include compensation for violating the right of assembly (for all the hundreds of thousands?), compensation for property damage, refusal of medical treatment.

They suggest guideline amounts or even minimums – Shs3 million for death, Sh4 million for “gender-based violence (GBV)”, Sh100,000 to Sh1 million for varying extents of injury. They also envisage specific payments for medical costs and rehabilitation.

Concrete proved costs are one thing – though assessing them may be very time consuming. More difficult are the intangible things. The calculations are often complex in court cases, especially where the victim died. I agree that a fixed sum for everyone suffering certain ranges of injury (or death) is probably better, with, in addition, money needed, or already spent, for care of the person, including for someone who later died.

It is important to realise that the money will come from the taxpayer. Government has no money. Government cannot be punished. As a senior judge in England said of companies 200 years ago, “it has no soul to be damned, and no body to be kicked”.

The Sh4 million for GBV seems to assume rape. The assumption, I suppose, is that the victim has to live forever with that burden, while one who has died does not. In the latter case, the compensation goes to the family. Though all GBV is serious, should not those who suffer rape get more?

Government says Sh2 billion has been set aside for this compensation. Operating the system will be very expensive, though cheaper than courts; has this been factored in? Many think it is not enough – but it never would be.

Conclusion

I am rather afraid that the KNCHR’s effort to widen the issue beyond demonstrations and beyond physical injury may lead to the process of actually compensating victims of protests being delayed even further.

I suspect that much more discussion, even more court cases, will take place before the process really gets underway. And making decisions on the individual cases will take longer than anticipated.

But we must not forget a major issue: how do we stop government, including through its agents, the police (a role the police should not have), from abusing citizens, and with impunity?

Recent events do not suggest that people in Kenyan public life are prepared to give up violence as a way of dealing with those who disagree with them.

Government paying money is not accountability. That comes only when individuals (or maybe a party) actually suffer – by being convicted for their crimes, or dismissed or rejected in elections. I am not sure this whole process is bringing us any closer to that.

Retired law teacher and member of the Katiba Institute Board