TJRC PETITION

Eight Commissioners of the TJRC Friday submitted a formal legal petition to the Chief Justice requesting that a tribunal be set up to inquire into whether the Chairperson of the Commission should be removed.

A statement from TJRC says the petition has the full support of the ninth Commissioner Ambassador Bethuel Kiplagat who chairs the Commission.

In their petition, the Commissioners say that allegations have been raised against the Chairperson linking him to human rights violations that are to be investigated by the Commission.

"We request that, pursuant to Section 17(2)(a) of the Act, a Tribunal be appointed that will, as set out in Section 17(2)(b) of the Act, inquire into the matter, report on the facts, and recommend to the President, whether or not the chairperson of the Commission should be removed from office," the statement said.

Acording to the commissioners the move has been necessitated by allegations of "misbehavior or misconduct" by Kiplagat.

The commissioners want the tribunal to specifically look into allegations of:

Illegal or irregular acquisition of land by the chairman
The assassination of the late foreign affairs minister Robert Ouko
The Wagalla massacre
The commission based their call for the formation of a tribunal on the fact that prior to his appointment, Kiplagat swore an affidavit declaring that he "has not in any way been involved, implicated, linked or associated with human rights violations of any kind or in any matter which is to be investigated under this Act [the Truth, Justice and Reconciliation Act of 2008, as amended]."

Calls for Kiplagat's resignation have been escalating amid questions of his involvement with the government of former president Daniel Arap Moi under which he was a senior government official.

However Kiplagat has declared that he was in no way implicated in human rights violations or any other kind of misdemeanor that would lead to his resignation as chairman of the commission.

The commissioners say the allegations should be investigated as to ensure TJRC's partiality, credibility and integrity.

implicated

Kiplagat has been mentioned in Ndung'u Report as a recipient of illegally or irregularly acquired land between 12 December 1963 and 28 February 2008. The report says Kiplagat was irregularly allocated property in Nairobi's Lavington and Kileleshwa areas, as well as 100 acres of land in Uasin Gishu district.

He was also under scrutiny following the murder of Robert Ouko who was then foreign affairs minister while Kiplagat was at the time the permanent secretary in the ministry.

Following Ouko's murder, Kiplagat appeared as a witness in four inquiries into the matter and the Parliamentary Select Committee on the killing recommended that he be investigated.

Regarding the Wagallah Massacre, Kiplagat has been mentioned as having been involved.

According to the commissioners Kiplagat participated in a meeting called by the District Security Committee of Wajir District, in Wajir a few days before the security operation that later became known as the Wagalla massacre.

The committee in its mandate is expected to among other issues look into these three matters and thus feels its credibility would be compromised if Kiplagat continues chairing the commission.

"Under the TJRC Act, a Commissioner may be removed for, among other things, "misbehavior or misconduct," the commissioners say.

Their petition asks the Chief Justice to determine whether the Chairperson in swearing to an affidavit that he was not associated with human rights violations of any kind or in any matter which is to be investigated under the [TJRC] Act and his denial of the same has committed an act that qualifies as misbehavior or misconduct.

In addition, the petition asks whether those same allegations, if proven true warranted Kiplagat's removal as his continuing as commissioner might create an appearance of partiality or otherwise harm the credibility or integrity of the Commission.

On Monday the Commissioners wrote to the Minister for Justice, National Cohesion and Constitutional Affairs Mutula Kilonzo requesting that a Tribunal be established to inquire into allegations that have been raised against Ambassador Kiplagat.

And on Thursday Kilonzo warned that the whole team risked being sent home as its integrity has been dented following their handling of the crisis.

The team which has been in office for one year is yet to start its work following the controversy over Kiplagat's appointment as the chair.

The Parliamentary Select committee on Administration of Justice and Legal Affairs will meet next week to deliberate on the crisis dogging the commission.

human rights violations

The mandate of the Truth Justice and Reconciliation Commission it to inquire into human rights violations including those committed by the state, groups or individuals.

It includes but is not limited to politically motivated violence, assassinations, community displacements, settlements and evictions.

It will also inquire into major economic crimes, in particular grand corruption, historical land injustices and the illegal and irregular acquisition of land especially as these relate to conflict or violence, between 12th December 1963 to February 2008.

The Commission will receive statements from victims, witnesses, communities, interest groups, persons directly or indirectly involved in events or any other group or individual; undertake investigations and research; hold hearings and engage in activities as it determines to advance national or community reconciliation.

Parliament enacted the Truth Justice and Reconciliation Act 2008 in October 2008 and it came to force on 9th March 2009.

The Commissioners who were appointed by President Mwai Kibaki on 22nd July 2009 are: Amb. Bethuel Kiplagat, Tecla Namachanja Wanjala, Kaari Betty Murungi, Gertrude Chawatama from Zambia, Amb Berhanu Dinka from Ethiopia, Ahmed Sheikh Farah, Tom Ojienda, Margaret Shava and Prof. Ronald Slye from USA.