Commissioners Tecla Namachanja and Margaret Shava at the launch of public hearings in Garissa (April 2011)       (Kenyan TJRC)

In 2004 a task force chaired by Professor Makau Mutua travelled throughout Kenya to determine whether a truth commission should be established to address historical injustices.  In their report, the task force observed that while their provincial hearings were “on the whole” well attended, the number of women participating in the hearings was “low.” The experience of the Mutua task force mirrored that of truth commissions generally. Female participation in truth commission processes worldwide has been low, leading more recent truth commissions to create special units to encourage the participation of more women. Kimberly Theidon discusses attempts to incorporate a greater gender sensitivity to transitional justice processes, focusing in particular on Peru.

Christine Bell and Catherine O’Rourke pose three sets of questions as part of a feminist critique of transitional justice generally.  First, where are women (both representation and participation in transitional justice design and process)? Second, Where is gender (where are the voices and experiences of women with respect to conflict, human rights violations and justice)? Third, where is feminism (referring to the feminist critique of justice and its applicability to transitional justice)?

Feminist critiques of truth commissions tend to focus on two issues. First, truth commissions ignore or do not devote sufficient attention to systemic, structural, and institutional violence that tends to affect women disproportionately. Second, truth commissions are not designed to encourage the participation of women, and thus perpetuate the silencing of women in those societies.

The drafters of the Kenyan legislation establishing the Truth Justice and Reconciliation Commission were sensitive to these critiques, requiring that there be gender balance among the commissioners (we began with five male and four female commissioners); requiring that the chair and vice chair be of opposite gender; including sexual- and gender-based violence in the violations we were to investigate, and suggesting that we put into place special mechanisms and procedures to address the experiences of women. During most of our operational period, our CEO was a woman; and during the fourteen months when we conducted most of our external activities (statement taking, public hearings, investigations, and other outreach activities), our acting chair was a woman – in fact Tecla Namachanja Wanjala was the first woman to serve as the chair of a truth commission.

While our final report correctly states that women made up 50 percent of our senior leadership team, a look at the substantive areas led by men compared to women shows that we replicated the gendered bias of the professions found not only in Kenya but in most parts of the world. For example, the directors of our legal department, investigations, and research were all men. Women were directors of our media, special support, and administration and finance departments. This gendered distribution of leadership mirrored that found in the broader Kenyan society.  A woman who participated in the women’s hearing in Bungoma noted this gendered approach to power, observing that “[i]f there is a seat being vied for, the one we can get is the position of Treasurer because they know women can take care of property. The men take the decision-making positions.”

We adopted a three-prong approach to address gender-related issues. First, we “mainstreamed” gender by expressly including a gender focus in most of our activities. Second, as recommended in a study of gender and truth commissions by ICTJ, we established a special unit that would focus on gender (as well as other systemic forms of discrimination) and facilitate the mainstreaming of gender in the rest of our work. In addition, we developed partnerships with the largest women’s organization in Kenya, Maendeleo ya Wanawake, and with the Gender Violence Recovery Center of the Nairobi Women’s Hospital, to both increase women’s access to our processes as well as to provide additional support to women, particularly those women who were victims of sexual violence. The result of this three-prong approach can be seen in our statement taking (which included a gender-related training component for all statement takers); our hearings (which included separate women’s only hearings); and our final report, which includes an analysis of the gender dimensions of most of the violations we examined, and also dedicates an entire chapter to gender and an entire chapter to sexual- and gender-based violence.