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.

Kibaki should catalyse reforms instead of protesting USA Travel Ban

The two conflicting views on travel ban coming from the President and the Prime Minister who are partners in the grand coalition government shows that one faction is for reforms and another ardent protectors of the status quo.

The two leaders must take full responsibility for failing to provide direction in the reform process instead of duelling on empty rhetoric.

If the Prime Minister is for reforms, he should avoid portraying himself as Mr. Clean, when he is part and parcel of the grand coalition government.

He should instead tell Kenyans and world what he has done individually to catapult reforms in the Country.

His recent speech in Harvard University, where he supported the USA’s travel ban on government officials convinced the world that it’s the government that is behind the delay to bring about reforms in Kenya.

It also showed a fatigued reform process and a disoriented government that lacks operational uniformity.

President Kibaki should also tell us why the government has failed to implement the reforms Kenyans desperately need to pave the way for smooth running of the country’s social, economic and political affairs.

The protest letter to Washington portrays Kibaki as a leader hell-bent on protecting few individuals and not the interests of the masses; the bulk of those who have been voting for him to public office for many decades.

We want him to focus on the wellbeing of the Kenyan people and their future but not the interests of power barons. It would have made sense if the President stated in the protest letter, the reasons for procrastinating reforms instead of just criticizing Washington’s travel ban on government officials.

Kenyans will support any external pressure if it will compel the government to implement the reforms the nation desperately needs. In fact, the USA has made a positive step and it will be fair if other Western powers especially the EU took similar steps.

The president his Vice, the Prime Minister and his deputies all should suffer the travel ban because its them who are in the seats of power but are impediments to the reform process.

Our leaders like being pushed from outside in order to implement reforms. It’s the pressure from outside that compelled former President Moi to accept the reintroduction of multiparty democracy in the early 1991.

Kenyans remember the activities of former ambassadors of Germany, Berndth Muzelberg and the late Smith Hemsptone of the United States in the reform process in Kenya.

Indeed, Kibaki and Raila were pushed externally to agree on power sharing as a result of former US Secretary of State; Condy Rice’s terse statement in Nairobi last year.

It’s sad that after one and a half years of the grand coalition government, the nation is still in limbo on meaningful reforms especially Agenda Four of the National Accord.

We are shocked on the president’s swift response on Washington’s ban on government officials when he is known to be silent on issues that require urgent response especially those that affect the lives of millions of Kenyans.

Why has kept silent on the Ringera circus as well as the trial of the Masterminds of post election violence and now wants to defend a few individuals in the grand coalition government who are likely to be personal non grata in the USA?

Finally, it’s imperative that Raila Odinga and Mwai Kibaki played pivotal roles to catalyse reforms in Kenya failure to which, we shall conclude that they are the biggest impediments to realize this end.

Joseph Lister Nyaringo,

USA, Georgia

Kenya’s IDP crisis: Only history can judge our collective inaction

In the aftermath of Kenya's 2007 general election over half a million people were displaced. Fleeing homes, loosing livelihoods and loved ones. To date some of the 2007 internal refugees still remain both in camps and transit sites. Yet the anomaly of internal displacement is not new to Kenya. From pre-independence, many Kenyans have been forcibly removed from their homes, having to settle elsewhere as refugees within their own country.

In contemporary history, the IDP crisis has been closely linked to the country’s electoral process, particularly with the advent of the country’s multi-party era. The crisis became the proverbial elephant in the living room – a topic that was too taboo to mention. For years following the post-election clashes of the 1990s the Moi regime swept the issue under the carpet, maintaining that there were no IDPs. However, with more freedom of expression and opening up of the media airwaves, the plight of IDPs has gained more limelight.

Kenya’s internal conflict has been almost like clockwork set to the political scene during general election years of 1992, 1997, 2002 and 2007 as well as the constitutional referendum of 2005. Every five years people have had to flee their homes and that is why the IDP situation falls into the category of a “complex emergency”.

So why term Kenya’s IDP crisis a complex emergency? For the simple reason that unlike natural catastrophes, people loose all they have in a matter of minutes yet the underlying cause is politically instigated and conflict-generated (Macrae and Zwi, 1994).

The United Nations’ Office for Co-ordination for Humanitarian Affairs (OCHA) (which draws its definition from the UN's Inter-Agency Standing Committee) defines complex emergencies as ‘a humanitarian crisis … where there is total or considerable breakdown of authority resulting from internal or external conflict …. (IASC, 1994). However, this reliance on authority breakdown has been criticized. David Keen author of the book "Complex Emergencies" writes on OCHA's definition having shortcomings arguing that in the case of 1994 Rwanda, the problem was not so much the breakdown of authority, rather that the "authority" being imposed was "ruthless” and had “vicious efficiency".

Indeed Kenya has always had a government, and the UN Guiding Principles on Internal Displacement stipulate that it is this same government that should ensure that the IDPs receive requisite humanitarian assistance, are resettled and reintegrated back into society. However the Kenya government has mismanaged this obligation.

The Government’s Ministry of State in charge of Special Programmes initiative to resettle the nation’s IDPs has been dubbed “Operation Rudi Nyumbani” (return home) which includes financial assistance and transport among other short- term measures.The causes of displacement and obstacles to resettlement have not been adequately addressed and the Ministry's stop-gap activities have failed to assure Kenyans that the Operation is not just a PR exercise so the government looks good to donors.

There has also been a disturbing tendency where anyone (whether an IDP or an interested party such as the Kenya Human Rights Commission) who questions how an unaccountable government can accountably distribute funds and materials to IDPs are met with torrents of abuse and muzzling.

Queries on government commitment and initiatives to assist IDPs to ensure long-term peace have centered on: poor co-ordination and corruption; insecurity; child and gender based violations; inadequate shelter and compensation for loss. The Kenya Human Rights Commission in an October 2008 report “A Tale of Force, Threats and Lies” even accused the government of forcing IDPs to go back to their homes.

As for the UN and those that adhere to the IDP Guidelines and rules regarding complex emergencies, they have been confined in that they have to deal with the government of day and trust that the government will most effectively and equitably distribute humanitarian assistance. However when the lives of people and those of future of generations are at stake, a dire need emerges to make sure that this complex emergency does not become a permanent one. It is thus imperative that the international community demands that the government ensures that the rights of all IDPs are upheld.

Indeed recent political events have shown the danger of inaction in enforcing strict observance of ethical standards regarding resettlement. Just last week, the government decided to compensate settlers in the Mau forest. This is hardly the first time such a compensation scheme has been conceived, however the common occurrence has been that the majority of the money falls into the pockets of the fat cats who grabbed the land.

The eponymous Ndung'u report which investigated illegal allocation of public land, lists no less than the families of former presidents Jomo Kenyatta and Daniel arap Moi as those who grabbed public property earmarked for squatter resettlement. On this issue, Nobel Laureate Prof. Wangari Maathai was today quoted in the media saying, “… the Kenya government does not have money, it’s your taxes. So if they don’t have taxes they will ask the World Bank to give them money to come and compensate leaders who misused their power (to acquire) land they should never have acquired …”

As it is, the Ministry of State for Special Programmes requires more funds which will come from the National Budget and the excess from donors. Isn’t it about time to first question whether Operation Rudi Nyumbani has been a success and whether indeed the government should still spearhead IDP assistance?

In August 2000, Fr. John Anthony Kaiser, a crusader for the rights of internally displaced persons was murdered. He was vocal speaking out on the injustices meted out to the displaced. However, almost a decade later, even more people languish miserably exiled from their homes.

As it is who knows how many more people will join the ranks of IDPs come the next general election, or for that matter the anticipated constitutional referendum? We also need to re-examine our outlook towards Kenya’s IDPs. In an age of reality television where shows such as Big Brother Africa keep viewers glued to their screens; alas when it comes to our brothers and sisters living in camps we are no longer voyeurs. Indeed, there is no difference between our IDPs and those in Darfur, yet though our eyes face the screen watching news stories on their plight, we no longer see the real suffering; we no longer question why this is happening; we only say a silent prayer that come 2012, we will not be the ones taking up airspace as IDPs.

Is it only in Kenya where we have become immune and impervious to news stories on corruption, impunity and gross violations of human rights? Could this be because this is the country where even those that engineer and carry out grand larceny on our nation’s coffers have the opportunity to transform themselves into televangeslist? Is that why we do not find it dysfunctional to watch the IDPs in their tattered clothes which cover emaciated bodies and hold up despondent faces?