Kiplagat Owes it to Kenyans to Resign

By Cyprian Nyamwamu And Ndung'u Wainaina 

Is it that Kenyans cannot see the dangerous game being played against them by very crafty politicians and state machinery?

The debate on the appointment of TJRC chairman Bethwel Kiplagat is not about personalities. It is about a new Kenya under new: value system, public ethics, political culture and accountability in management of public affairs by public office holders. TJRC is about confronting the past socio-political and moral bankruptcy of the society in order to break away from that past. We cannot do it under pretence or convenience.

This is about taking head on the systemic crisis of impunity that have and continue destroying Kenya. The selection panel and MPs failed to listen to Kenyans' demand to subject TJRC commissioners selection process to public scrutiny. The reports that adversely mention Kiplagat have been public information. These reports were produced by government, commissions and task forces funded through taxpayers' money. How could it have been possible that both selection panel and Parliament overlooked these reports despite requirement of the TJR Act?

The TJR Act 2008 section 10(6) (a) (b) and(c) are very clear on who can work in the TJRC not just as the chairman but in any capacity. Kiplagat is not being accused of having served in Kanu regime. Nothing can be far from the truth. He is specifically adversely mentioned in several public funded and officially sanctioned reports. His appointment therefore contravenes the sections of the TJR Act.

Kiplagat is a public officer by virtue of his appointment. He is therefore not a private citizen. Once you hold public office, you must be open to public scrutiny and accountability. How can Kiplagat sign off a TJRC final report of which he is a subject matter?

Kiplagat is a duty bearer while Kenyans are rights and responsibilities holders. Moreover he is heading the "mother of all commissions", the TJRC. The reports of the 38 former commissions of inquiry and task forces of the past shall form the core resource materials and subject of this big commission. It is not an ordinary commission.

His office as chairman is a more demanding office than that of judge of the high court and even the Chief Justice. Why? Judges rely on legal authority of their bench to issue rulings of cases taken before them. The TJRC chair and commissioners rely on integrity, moral authority and public trust to have victims go before them and for them to use the information and material given to them, to write their report and make recommendations. 

A court of law can say that this judge is competent to preside over a matter even when one demands that a judge steps aside; but a court of law cannot rule that Kenyans should trust Kiplagat and further order that victims should appear before the Kiplagat-led TJRC! This is not a judicial process. This is not a legal process per se but a crucial moral and social reconstruction process of a society.

Already victims are in court saying Kiplagat cannot secure their truth; he will not unearth the truth; and he cannot bring down if necessary his former employers and grandmasters; and people who gave him houses and land like Moi and others. These victims are the ones we should be listening to. Kiplagat should resign. And he shall resign.

If the citizens who are his employers see that Kiplagat shall use his office to serve the powerful who seem to have put him in the seat and not the many who suffered the violations, how can this employee refuse to resign arguing that his rights he being violated? Which rights have been violated? He wants a fair trial and hearing. Who has denied him fair trial? Let him seek all trials he can get. But fortunately' this is victims and Kenyans' TJRC, not his.

When people conveniently ask why we have not named other people who perpetrated violations, we wonder why it is not clear to such people that we shall be forwarding these claims to the TJRC. Right now what we need is a competent and credible TJRC. We do not have one. There are credible assertions of Kiplagat having done things that shall be the subject of the TJRC. SO he can only be a witness of TJRC not a commissioner, let alone being the chairman.

Then there is an argument that even President Kibaki was part of the Moi tyranny. But then Kibaki is not a TJRC commissioner or chair. Kibaki will have to appear before the TJRC to tell us all Kenyans a lot about what he knows about the murder of JM, Ouko, Nyayo torture chambers, Wagalla Massacre and many other serious violations.

Those giving flimsy argument in support of Kiplagat cannot even be said to be in bed with a strange bedfellow. It is a surrender of principle. The principle of democratic and credible processes of seeking the truth and justice. This country is suffering from a crisis of impunity and we should avoid convenient arguments that may embolden impunity.

Nyamwamu heads the National Convention Executive Council while Wainaina is the executive director of the International Centre for Policy and Conflict.