TJRC FINDINGS PART II:

TJRC FINDINGS PART II:

A continuation of Kenyatta, Moi and Kibaki administrations’ atrocities against the people of the North.

Massacres in The North

Truth, Justice, and Reconciliation Commission, Kenya, finds in its report submitted to the president, that most massacres committed by state security agents in the post-independence period have occurred in Northern Kenya, that is, North Eastern, Upper Eastern and North Rift. These massacres were committed during security operations with the stated purpose of, among other things, combatting cattle rustling and disarming the population. The Commission finds that state security agencies were responsible for the following massacres: Massacres during the Shifta War; Bulla Karatasi Massacre, 1980; Wagalla Massacre, 1984; Lotirir Massacre; and Malka Mari Massacre.
Massacres committed by civilians mostly occurred as a result of cattle rustling and inter-ethnic or inter-communal conflict. The Commission finds that the motivation for inter-ethnic massacres was mostly contestations for control of land for pasture and water. Another motivation includes retaliation. As such, ethnic groups which were victims of massacres were often previously perpetrators of massacres themselves against the attacking group. Inter-ethnic conflict was characterised by reprisals and revenge attacks.
Most accounts of massacres that were presented to the Commission were undocumented which made investigating such incidents difficult if not impossible. The vast majority of perpetrators responsible for the massacres have not had to answer for their crimes. To this day they remain unpunished. Massacres that took place during the mandate period were invariably accompanied by the committal of a range of other violations. These included rape and other gender-based violations, torture, enforced disappearances and destruction of property.
The Commission finds that because most massacres committed by security agents have occurred in Northern Kenya, victims of massacres are therefore predominantly of Somali, Borana, Sakuye, Gabbra, Pokot and Turkana ethnic groups. Most victims of massacres in North Eastern and Upper Eastern were predominantly Muslims. The communities targeted for attack by way of massacres in inter-ethnic conflict were in most cases isolated and far from police or government presence. Victims were mostly attacked or ambushed at watering points, while herding livestock or while in their homesteads. Children were sometimes the targets of massacres. In the case of the Turbi Massacre of 2005 a primary school was specifically singled out for attack and 21 children killed. Similarly in the Murkutwa Massacre, a total of 12 children were killed.

COLLECTIVE COMMUNITY PUNISHMENT

In respect of massacres committed by state security forces, the Commission finds that these massacres were the products of a desire on the part of the relevant security forces to impose collective punishment on communities whose members were suspected of committing various transgressions. The Commission finds that the prevailing security environment of lax controls and almost total impunity for perpetrators effectively encouraged and condoned the committal of such heinous crimes.
The Commission is not aware of a single criminal conviction for any massacre committed by the security forces in Kenya during the mandate period. The Commission notes that command responsibility can be attributed to those who exercise actual authority over subordinates. It applies to both civilian and military officials. It arises when those in command knew, or had reason to know, that crimes were about to be committed or had been committed by their subordinates or those under their effective authority and control, and they failed to take the necessary and reasonable measures within their power to prevent or punish those subordinates. Commanders are under an objective responsibility to try to establish what their subordinates are doing and discipline them where appropriate. Responsibility can even be imposed where the commander does not take adequate steps to keep abreast of the criminal activities of his or her subordinates.
The Commission made formal requests to the Ministry of Defence for information in respect of the role of the Army in the Shifta War and other massacres but no response was received. The Commission finds it regrettable that the Ministry of Defence chose to ignore or refuse the request, and thus to act in clear violation of the provisions of the TJR Act. In so doing the Ministry of Defence has undermined Kenya’s truth and reconciliation process.

Bulla Karatasi/Garissa Gubai Massacre

The Commission finds that the security operation conducted in Garissa in November 1980 resulted in the massacre of hundreds of civilians. Numerous other atrocities were committed by state security agents (the regular police, administration police, General Service Unit, and the Kenya Army), including torture, brutal beatings, rape and sexual violence, burning of houses and looting of property. The Commission finds that the Bulla Karatasi Massacre, and the detention, torture, rape and sexual violation of women, burning of houses and the looting of property, was a systematic attack against a civilian population and thus qualifies as a CRIME AGAINST HUMANITY. The Commission finds that to cover up the massacre, security agents involved in the operation disposed of the bodies of those killed into the Tana River. The Commission finds that collective punishment was a key component of the Bulla Karatasi security operation which resulted in the mass killings of civilians. Security agents operated on the presumption that the entire population of Garissa town and its environs was somehow responsible for the shooting of civil servants, the crime which prompted the mounting of the security operation. On this basis, all Somali male adults were rounded and detained at Garissa Primary School where they were screened, tortured and brutally beaten. The Commission finds that the military participated in the Bulla Karatasi Massacre.
The commander of the Kenya Army, amongst others, flew to Garissa the day after the operation on a fact-finding mission. It is difficult to see what would have necessitated a high ranking member of the Kenya Army to visit the site of the massacre other than some level of military involvement in the operation. The Commission therefore rejects the official position that the military did not participate in the operation.The Commission finds that members of the North Eastern Provincial Security Committee (chaired by Benson Kaaria, the then Provincial Commissioner for North Eastern Province) and Garissa District Security Committee at the time of the Bulla Karatasi operation bear responsibility for the massacre and other atrocities committed during the security operation. The members of both the Provincial and District Security Committees sat in the same emergency meeting at which the security operation and the collective punishment of male adults of the Somali ethnic community was authorised.
The Commission also finds that the Minister for Internal Security at the time of the security operation, Godfrey Gitahi Kariuki (popularly known as G.G. Kariuki), bears responsibility for the operation and the ensuing atrocities. The Commission finds that the conduct of Benson Kaaria and G.G. Kariuki, both of whom appeared before the Commission, is consistent with the official denials and deflections that followed in the aftermath of the Bulla Karatasi Massacre. Before the Commission, Benson Kaaria repeatedly asserted that the Bulla Karatasi operation did not result in any deaths nor were any women raped or otherwise sexually violated. Similarly, G.G. Kariuki denied knowledge of any deaths or rapes. The Commission finds that members of the North Eastern Provincial Security Committee and the Garissa District Security Committee and the Minister of Internal Security at the time of the Bulla Karatasi Massacre are unfit to hold public office in Kenya’s new constitutional order. The Commission finds that despite the numerous atrocities committed by security agents during the Bulla Karatasi operation no one was ever identified as responsible or held to account.
Wagalla Massacre
The Commission finds that the security operation conducted in Wagalla, Wajir, in February 1984 resulted in the massacre of hundreds of civilians. Numerous other atrocities were committed by state security agents including torture, brutal beatings, rape and sexual violence, burning of houses and looting of property.
The Commission finds that the Wagalla Massacre, including the detention, torture and killing of the male members of the Degodia tribe at the airstrip, and the rapes, killing of livestock and burning of homes in the villages, was a systematic attack against a civilian population and thus qualifies as a crime against humanity.
The Commission was unable to determine the precise number of persons murdered in this massacre but accepts that a large number died, possibly close to a thousand. The official figure of 57 given by the state therefore grossly underestimates the number of people who were killed at Wagalla and is an example of the generally thoughtless manner in which the state has traditionally treated massacres committed by its own agents.
The District Security Committee (DSC) at Wajir authorized the security operation that resulted in the massacre. The plan involved confining people at the airstrip, a place not officially gazetted as a detention center.
The Provincial Security Committee (PSC) at Garissa had a role to play in the authorizing of the operation as is evidenced from the signal that was sent from the Garissa PSC to the Wajir DSC that called for the rounding up of persons and livestock and for them to be “treated mercilessly”. The Commission finds such language in official communications to be highly inappropriate and reckless. Such words stood as an effective license for subordinates to take the law into their own hands. The Commission finds the PSC and in particular, the author of the signal, Provincial Police Officer Aswani, to be responsible for encouraging the recipients of the instruction to act in a lawless manner.
The Kenya Army is held to be responsible for the actual execution of the massacre. The military as a matter of necessity must also have played a role in the planning of the operation.
The Commission is satisfied that the DSC, the PSC and the Kenya Intelligence Committee (KIC) knew or should have known that the security approach adopted would lead to gross violations of human rights, including the deaths of innocent individuals. None of the members of these bodies learnt any of the lessons from earlier massacres, such as the 1980 massacre in Garissa (Bulla Karatasi). Alternatively these persons chose to ignore such lessons.#
There was a deliberate effort by the government to cover up the details and extent of the massacre.  The cover-up involved most if not all of those in positions of authority in Wajir, Garissa and Nairobi.
The Commission notes that members of the KIC visited Wajir the day preceding the Wagalla Massacre, during which visit they held a meeting with the District Security Committee. The Commission finds that members of the KIC deliberately mischaracterized to the Commission the nature of the KIC trip and withheld or concealed information concerning their knowledge and/ or involvement in the security operation. The Commission finds that while development may have been on the KIC’s agenda as alleged by such members, its primary mission was in fact to assess the state of security in the region. This much is apparent from the documents concerning the planning of the trip, as well as the documents prepared shortly after the trip.  This conclusion is also confirmed by some of the witnesses who testified.
The Commission notes with deep concern that notwithstanding their positions and seniority, their specific brief in the area, the security briefings received, and their knowledge of ongoing incidents and the declining security situation in Wajir, that all of the KIC members interviewed or who appeared in the hearings denied any knowledge of the plans to follow up or deal with the security situation. The Commission finds that, in the circumstances described above, such denials are not credible.
The Commission accordingly finds that the KIC must have been apprised of the plans for the pending security operation. In fact the Commission was told that the security operation was planned by the National Security Council in Nairobi in January 1984 which, if true, makes it extremely difficult to believe that the KIC would not have been made aware of such plans in connection with their tour of the area. One of the questions the Commission was unable to answer is why the KIC members have chosen to feign total ignorance as to what measures were to be taken, even close to thirty years after the event. 86. The KIC members were likely to have received news of the massacre before most people. However, they deny this. Some of them went so far as to claim that they only heard of the Wagalla Massacre through newspaper reports that surfaced weeks afterwards. The Commission finds these claims implausible
The conduct of the KIC members is consistent with the official wall of silence that descended over the facts and details of the Wagalla Massacre. In feigning ignorance, the KIC members have invited deep suspicion about answers to the most serious questions as to their specific roles in the days preceding and just after the Wagalla Massacre. The Commission finds the conduct of the KIC members unbecoming of their high offices. Indeed the Commission finds that particularly because of their continued cover-up of the circumstances surrounding the massacre that none of the individuals who were members of the KIC are fit to occupy any position of responsibility in the new Kenyan constitutional order.
The Government refused to make available to the Commission specific documents related to its investigation of this and other massacres in clear violation of the TJR Act. Specifically the Commission did not receive the full set of minutes of meetings of the relevant PSC, DSC, and KIC meetings, and did not receive any minutes of the NSC, despite repeated requests. This violation of the TJR Act has severely hindered the ability of the Commission to discover the entire truth and context of these and other violations.
Malka Mari Massacre
The Commission finds that the 1981 security operation in Malka Mari, Mandera, resulted in the massacre of hundreds of individuals. During the security operation, women were raped and were subsequently shunned in the community. Others suffered serious injuries, including the loss of limbs. 90. The Commission finds that the state has maintained an official silence over the massacre. Turbi and Bubisa Massacres 91. The Turbi Massacre occurred on the morning of 12 January 2005 when raiders attacked Turbi village in Marsabit. Afterwards, nine people were killed in Bubisa in revenge for the killings in Turbi. This killing of nine people is commonly referred to as Bubisa Massacre.
The Commission finds that preceding the Turbi and Bubisa Massacres were numerous resource-based conflicts between the Borana and Gabbra communities.
The Commission finds that about 95 people were killed during the Turbi and Bubisa massacres, including 12 children who were killed at Turbi Primary School. The Commission finds that the Turbi and Bubisa Massacres were both ethnic-based and politically motivated.
The Commission finds that the Turbi and Bubisa Massacres occurred partly as a result of the failure of the state to provide security for the people of Marsabit and particularly the victims and survivors of the massacres. While there were early warnings of looming violence in Marsabit, the government security apparatus failed to respond in good time.
The Commission finds that that the Turbi and Bubisa Massacres has had severe impact on the communities living in Marsabit, especially the Gabras and Boranas.
The Commission finds that no one was ever identified as responsible or held to account for the Turbi and Bubisa Massacres. A criminal trial was against 3 people allegedly responsible for the Bubisa Massacre but the case was later withdrawn.