Position on the Truth Justice and Reconciliation Commission

THE POSITION OF KHRC ON THE CREDIBILITY OF BETHUEL KIPLAGAT, THE CHAIR OF KENYA’S TRUTH, JUSTICE AND RECONCILIATION COMMISSION

The KHRC is a non-governmental organization with the mission to entrench human rights and democratic values. The KHRC believes that transitional justice and pro-citizen reforms are pointers towards a democratic and human-rights centred state in Kenya. For the last ten years, the campaign for a victim-centred Truth, Justice and Reconciliation Commission (TJRC) has been one of the major transitional justice projects for the KHRC and other human rights and victims organizations in Kenya.

Since the debate on the credibility, legitimacy and integrity of the Commissioners to the TJRC began after their appointment in July 2009, the KHRC has advocated for a conflict of interest policy within the TJRC. The KHRC took this position with an expectation that such a policy will enable the Commissioners who are adversely mentioned during the work of the Commission to step aside or withdrawal from the related matters. This was based on the evidence we had at that time and the pragmatic expectation that it will enable the Commission to move on with its work, while at the same time, resolving the emerging or underlying issues.

Following the recent reports by the Centre for Multiparty Democracy (CMD), International Centre for Policy and Conflict (ICPC), Release Political Prisoners (RPP), members of the Kenyans for Peace, Truth and Justice (KPTJ), among other partners, on the integrity and credibility of the chair, Mr. Kiplagat, the KHRC has so far reviewed and confirmed that some of the allegations against the chair in regard to his involvement in historical land injustices and political assassinations are credible.

On historical land injustices, Volume 1 of Annexes to the Report of the Commission of Inquiry into Illegal and Irregular Allocation of Public Land (Ndung’u Report), indicates in page 798 that indeed Mr. Kiplagat had illegally acquired public land in Lavington. In addition to this, Mr. Kiplagat is said to have confessed to the allegations of illegal and irregular acquisition of public land in Uasin Gichu (Eldoret) and Kileleshwa (Nairobi).

Moreover, on page 216 of the Report of the Parliamentary Committee of Inquiry into the Murder of Dr. Robert Ouko (Sunguh Committee), a reference to the Report by the Scotland Detectives (led by John Troon and initially hired to investigate the murder) avers that Mr. Kiplagat was untruthful in his submissions to the Troon Team. The Sunguh Committee Report goes further to recommend in page 128 that Mr. Kiplagat should be investigated.

The KHRC is still verifying information on the involvement of the chair in RENAMO activities, extradition of citizens in exile, Wagalla massacres, among others.

Based on the above evidence so far, the KHRC believes that the Mr. Kiplagat falls short of the qualifications of the chair as stipulated Section 10(6) of the TJRC Act. The Act provides that the prospective candidates should be persons of good character and integrity and had not been involved, implicated and linked with human rights violations of any kind.

Thus the KHRC demands as follows. That:

1. Mr Kiplagat resigns with immediate effect as the chair of the TJRC. Section 16(b) of the TJRC Act provides that the chairperson or a commissioner shall vacate offices on among other grounds, resigning by writing under his hand a letter addressed to the President. Section 17(1) provides further that the chairperson or a commissioner may be removed from the office for among others, misbehaviour and misconduct, which fits well within the above-mentioned evidence.
2. Failure to that, the Chief Justice pursuant to Section 17(2) of the TJRC Act (2008) constitutes a tribunal to investigate the allegations against Mr. Kiplagat.
3. After Mr. Kiplagat steps down or resigns, the Selection Panel in liaison with the Parliamentary Committee on Legal Affairs and Administration of Justice should immediately initiate a process of getting his replacement in line with the above qualifications.

The KHRC believes that these actions may restore some legitimacy to the Commission critical in realizing its mandate of promoting peace, justice, national unity, healing, and reconciliation to victims and Kenyans in general.  While the KHRC notes that the TJRC may not hold out much hope for justice as such due to the existing operational and political bottlenecks, we are cognizant that it may be important in terms of building a common understanding of how the state has related to different individuals/groups in the country since independence on and thus an understanding of why there's so much tension among us today.

Signed by:

 Prof. Makau Mutua

Chair of the Kenya Human Rights Commission

cc.        Hon. Mutula Kilonzo,

Minister for Justice, National Cohesion and Constitutional Affairs

Hon. Abdikadir Mohammed,

Chairperson of Parliamentary Committee on Legal Affairs and Mandera Central MP

Coordination and Liaison Office (CLO) in Nairobi