Chief Justice Evan Gicheru has appointed a five-person tribunal to investigate embattled truth commission boss Bethuel Kiplagat.
The tribunal appointed on Friday will report and give its recommendations within six months.
It will be chaired by former Appeal Judge William Deverell with a mandate to inquire into claims that Mr Kiplagat’s past conduct “erodes and compromises his legitimacy and credibility” as chair of the Truth, Justice and Reconciliation Commission.
Absence of integrity
The tribunal will also investigate claims that the chairman’s past is “riddled with unethical practices and absence of integrity” and that he has been linked to or associated with “incidents considered to be abuse of human rights” and may be called as a “witness in the same matters that the commission is mandated to investigate”.
Other tribunal members are retired High court judges Onesmus Mutungi and Benjamin Kubo and state counsel Edwin Okello and Ms Perpetual Waitere. Mr Okello will be assisting counsel to the tribunal while Ms Waitere will be secretary.
In a special notice, the Chief Justice said he decided to appoint the tribunal after questions were raised about Mr Kiplagat’s conduct. The formation of the tribunal comes a day after a 72-hour ultimatum given by Parliament to the TJRC asking them to resolve their problems or risk disbandment.
The ultimatum was given by the House Justice and Legal Affairs Committee. “They have to find a solution to their credibility problems within 72 hours, failure to which this committee shall move without any delay to recommend to Parliament that this commission be dissolved through legislation,” the chairman of the committee Mr Ababu Namwamba had said.
“We shall not and we’ll not engage in the process of perpetual discussion.” The MP, who was flanked by all members of the committee except Mandera Central MP Abdikadir Mohammed, had said his team was ready to table a new Bill in Parliament to repeal the TJRC Act.
Civil society and groups and injustice victims have been up in arms over the appointment of Mr Kiplagat as TJRC chair. The TJRC is expected to investigate human rights abuses since 1963.
A group of activists, led by former MPs Njeru Kathangu and Koigi Wamwere have filed cases in court challenging his appointment. They argue that Mr Kiplagat served a government that perpetuated impunity and is the wrong person to investigate human rights abuses. The case is pending in court.
On September 10, civil society organisations presented a petition to the CJ listing the bases for a tribunal to investigate Mr Kiplagat. The organisations said the TJRC Act was not complied with in Mr Kiplagat’s appointment.
The Act requires that one be appointed chair if he or she is of good character and integrity and has not been implicated in human rights violations. Rights groups said they are particularly concerned about the murder of former Foreign Affairs minister Robert Ouko.
Though Mr Kiplagat was his permanent secretary, he has never been accused of wrongdoing in the matter and he has protested his innocence. Mr Kiplagat was also named in the Ndung’u report on land grabbing.
The country’s search for national healing and reconciliation has been dogged with problems since the formation of TJRC and appointment of Mr Kiplagat.
The TJRC, whose mandate expires in November next year, is paralysed partly because of lack of money, having been abandoned by both the government and donors and internal disagreements over the suitability of the chairman.
The commission’s vice-chair, Betty Murungi, resigned in April because of concerns over the chairman’s past. American law professor Ronald Slye is the latest to have resigned from the commission.
Prof Slye, a programme director at the University of Seattle’s School of Law, said he had “lost faith” in the ability of TJRC “to fulfil even a small part of its mandate.”
The board was set up after former UN secretary-general Kofi Annan brokered peace between PNU and ODM, whose supporters killed at least 1,500 people following the controversial 2007 presidential election.
The commission was seen as the only domestic attempt to highlight those responsible for that violence, as well as also uncover misdemeanours carried out by the country’s political elite since independence from Britain in 1963.
Disquiet over the chairman within the TJRC has been so acute that commissioners wrote to the Chief Justice asking him to form a tribunal to try Mr Kiplagat six months ago.
Last week, Justice, National Cohesion and Constitutional Affairs minister Mutula Kilonzo took issue with the CJ for taking long to respond to the commissioners’ request.
Mr Kiplagat, a former ambassador to Britain, was accused of having attended a meeting on the Wagalla massacre in 1984 when he was permanent secretary.
Mr Kiplagat has since admitted having been to Wajir during the massacre, but incensed his critics by saying the government could not have been involved. He has asked for the tribunal to give him a chance to clear his name.
The TJRC has seven Commissioners and 73 staff. Although it had requested for Sh1.2 billion as its annual budget, the Treasury only gave it Sh190 million, enough to last up to the end of this month.
Additional reporting by Lucas Barasa