Kiplagat-TJRC row back in court

The truth commission went to court on Wednesday to bar its embattled chairman Bethuel Kiplagat from assuming office even as he read the riot act to staff and commissioners.

The Truth Justice and Reconciliation Commission (TJRC) wants the court to compel Chief Justice Willy Mutunga to constitute a tribunal to investigate Mr Kiplagat.

It accuses the Chief Justice of failing to extend the term of a tribunal established in 2010 to inquire into allegations of human rights violations against Mr Kiplagat.

The commission claims that the former diplomat, who has been out of office for 14 months, was interfering with its work.

Lawyer Waweru Gatonye told Mr Justice G.B.M. Kariuki that Mr Kiplagat was a threat to the work of TJRC.

“The court should issue orders prohibiting Mr Kiplagat from interfering with the work of the commission until he is cleared by a tribunal duly set up by the law,” said Mr Gatonye.

The lawyer said commissioners had threatened to boycott public hearings in Mombasa if the embattled chairman remained in office.

He said the integrity of Mr Kiplagat was questioned due to allegations of his involvement in the Wagalla Massacre, land grabbing and the murder of former Foreign Affairs minister Robert Ouko in 1990.

The commission was established to seek and promote justice, national unity, reconciliation and peace by inquiring into the human rights violations since 1963 and recommending appropriate redress.

The judge will decide on Friday whether the orders sought by the commission should be issued.

At the same time, Mr Kiplagat moved to assert his authority in a memo to staff and commissioners.

Resumption of authority

“Accordingly, any powers or authority previously exercised by or on behalf of the acting chair lapsed by operation of law upon the chairman’s resumption of authority,” he said.

Mr Kiplagat challenged those who were not happy with his leadership “to raise the matter with the appointing authorities or the courts.”

He dismissed claims that he could only be allowed back to the TJRC on consultations with other members.

He said under the TJRC Act, an acting chair only performed the duties of the chair during the absence or incapacity of the chair.

“The chairman does not need any ‘consultation’ or ‘authority’ of any commissioner or staff member to resume office. Any commissioner or staff member who is unhappy with the chairman’s return to office should raise the matter with the appointing authority or the courts. Anything short of this will be treated as insubordination, to be dealt with in accordance with the relevant legal and disciplinary procedures,” said the circular.

The memo was copied to the Chief Justice, Head of the Civil Service and the permanent secretary at the Ministry of Justice, National Cohesion and Constitutional Affairs.

Mr Kiplagat said he had the right to access all commission documents and direct proceedings.

“The chairman expects every commissioner and staff member to avail to him all such of the commission’s documents as the chairman may from time to time require in the execution of the functions of his office. Any commissioner or staff member who defies any such request shall be deemed to be engaging in insubordination,” Mr Kiplagat warned.

He said the commission and its staff were legally incapable of ordering or requesting him to stop coming to office.

“Any such request shall henceforth be deemed an act of disrespect and insubordination,” Mr Kiplagat said.

Last week, Mr Justice Onesmus Mutungi, who chaired the defunct tribunal, said Mr Kiplagat was free to resume work since the investigation team did not complete its work.