Women singing at the launch of the TJRC public hearings in Garissa (April 2011)               (Kenyan TJRC)

Addressing the first feminist critique – the failure to address systemic and structural violence that tends to affect women disproportionately – was easier for us to address compared to other truth commissions given our broad mandate and, in particular, the requirement that we investigate violations of socioeconomic rights. To better analyze systemic and structural issues, including those related to socio-economic rights, we needed to address effectively the second critique – the failure to encourage active participation of women, a failure that had already been experienced by the Mutua Task Force.

In addition to dedicating specific parts of our statement-taking form to capturing the experience of women; training our statement takers on gender sensitivity, and ensuring a high percentage of female statement takers (43 percent), we also conducted thirty-nine of what we called women’s hearings in each of the places where we held public hearings. Our challenge was not just to encourage women to participate and speak to the Commission, but also to elicit testimony about violations and related issues experienced by them. The experience of previous truth commissions suggests that women who are willing to speak about past violations tend to speak as witnesses and observers concerning incidents that happened to others, usually the male members of their family. The characterization of such testimony as indirect is itself problematic, as it tends to de-emphasize the secondary effects of violations on family members and community members and more fundamentally emphasize the individualistic, rather than community-oriented, aspect of violations. While women may testify about what happened to others in their family or community because they are reluctant to testify about themselves, they may also focus on violations directly experienced by their family and community members because they see themselves as part of those larger social entities and, thus, are more likely than men to see such violations of “others” as affecting them, their families, and their communities directly. Nevertheless, we were concerned that some women might feel reluctant to share their own direct experiences of violations out of fear rather than because they adopted a more holistic approach to violations and their effects.

In addition to holding women’s hearings in each place where we held public hearings, we often had a prominent woman activist from each community testify about the experience of women generally in that community. We were able to do this in part because of the strong working relationship we had developed with Maendeleo ya Wanawake, the largest women’s membership organization in Kenya. We were thus able to explore at the local level some of the broader systemic, institutional, and cultural issues faced by women. To further broaden this analysis, we devoted one of our national thematic hearings to women. The purpose of the thematic hearing was to supplement the individual stories we had heard in the field – both from witnesses as well as local activists – with a more national and even international perspective on the broader systemic issues facing women in Kenya.

We collected and analyzed all of this information for inclusion in our final report. The report thus includes an analysis of gender-based persecution and systematic discrimination against women (for example, the preference for the boy child in some communities, and the marginalization that is then created from birth for the girl child). We discuss the link between traditional practices (bride price, female genital cutting, early and forced marriage, and widow inheritance) and other rights violations such as poverty, illiteracy, reduced life expectancy, and reduced access to education. We devoted an entire section of our chapter on gender to the socioeconomic status of women, where we discussed the feminization of poverty, disparities in employment (including disparities across different employment categories); workplace abuse, including sexual  harassment and violence; the lack of women’s ownership or even co-ownership of land and the effect of this reality on other violations suffered by women; reproductive health and women’s limited access to medical facilities and services; HIV/AIDs; leadership and political participation (including the link between systemic discrimination and the lack of female representation in government, and the effect of lack of female political leaders on perpetuating such systemic discrimination); women in armed conflict; and forced displacement and its impact on women and girls.

Sensitive to the common criticism of previous truth commissions that women were often portrayed in their final reports as victims and not as agents, we included stories of empowered women in the context of historical violations. We also included discussion of the important role women have played in peacemaking in Kenya and the east African region.

We were also sensitive to the tendency of previous truth commissions to reduce women’s experience with human rights violations to gender-based and sexual violence. We deliberately created separate chapters for the discussion of gender discrimination and for gender-based and sexual violence. In fact, the sexual violence chapter included information we had gathered concerning sexual violence against men, a phenomenon also commonly overlooked not just by truth commissions but by many institutions dedicated to documenting and preventing human rights violations. Our gender chapter, titled “Gender and Gross Violations of Human Rights: A Focus on Women,” was the third longest at 161 pages. Our chapter on sexual violence was fifty-eight pages long and expressly discussed the linkages between gender- and sexual-based violence and other violations and consequences that previous truth commissions were criticized for ignoring. We thus included a discussion of the link between sexual violence and access to adequate healthcare; the effects of rape, including unwanted pregnancies, unwanted children, and the impact on the individual, family and community of such “unwanted” or stigmatized children; and sexual violence committed against men.

While the Kenyan TJRC can rightly claim some important successes in capturing the experience of women with respect to historical injustices, the full story of the Kenyan TJRC is one of both success and failure.  As I recount in my book, The Kenyan TJRC: An Outsider’s View from the Inside, the failures, while significant in some cases, are not fatal.  There is much that those engaged with the field of transitional justice, and more broadly those engaged with international justice, can learn from the Kenyan TJRC, not least of which are the important innovations we adopted to better include, respect, and reflect the experience of women.