We the Kenya Transtional Justice Network (KTJN) are concerned that the embattled former Chairman of the TJRC is seeking to reclaim his position again.  This is happening when the commission, though riddled with many integrity and operational problems is supposed to wind up its work and submit its final report in May 2012.  It is now clear to the general public that Kiplagat is led by personal ambition as opposed to the greater good of the country and especially victims of human rights violations, victims he claims to care about.

Kiplagat was sworn in as the chair of the TJRC on the 3rd of August 2009.  Immediately after his appointment, victims and human rights defenders under the umbrella of KTJN opposed this appointment and asked him to resign pending an investigation by a tribunal as provided for in the TJRC act.   This was because of his alleged links to issues expected to be investigated by the TJRC including: the Wagalla Massacres; political assassinations (especially the murder of Dr. Robert Ouko) and illegal and irregular allocation of public land (as adversely mentioned in the Ndung’u Report).

On 13th April 2010, the rest of the TJRC commissioners petitioned the then Chief Justice Hon Evans Gicheru to form a tribunal to investigate the conduct of Mr Kiplagat. On 12th of October 2010, the human rights organizations in Kenya under KTJN petitioned the same chief justice to set a tribunal to investigate Kiplagat.  In February 2010, the former chairpersons of the Truth Commissions from all over the world urged him to resign. All this time Kiplagat consistently refused to step aside until the chief justice set up a tribunal on the 10th of December 2010.

It is worth noting that the government was not interested in the establishment of this tribunal thus unnecessarily delayed the process of establishing the tribunal. And indeed if there were forces seeking to scuttle the TJRC process through his appointment, it would appear that his return demonstrates their tenacity to curtail truth and justice. Could the return and continued intransigence of Kiplagat be evidence of the wider scheme by the forces of impunity to scuttle the transitional justice agenda in this country?

We reiterate our reasons for strongly opposing Kiplagat’s chairmanship in the TJRC:

  1. A tribunal was established to investigate Ambassador Kiplagat in December 2010 but did not commence its work until February 2011, a delay that was neither explained nor mitigated. This was a deliberate attempt to frustrate the process from its inception. The tribunal never received the requisite support to undertake its task.
  2. Kiplagat stepped aside and pledged to submit himself to the process of the tribunal but soon after mounted a legal challenge as to its validity to investigate him. His primary interest seemed to be to forestall the tribunal process and shield himself from further scrutiny as opposed to clearing his name of existing allegations.
  3. While the legal challenge against the tribunal’s investigation into his past conduct may have been dispensed with through his withdrawal of the application, the substantive issues challenging his fitness as chair to the TJRC persist:
  • He has been adversely mentioned and appeared in sessions regarding the Wagalla Massacre. He has been on record denying any involvement in the massacre but later conceding that he was in a delegation that toured the region during the material time and also sat in the Kenya Intelligence Committee that has been adversely mentioned in planning the massacre. Such inconsistencies, lies and potential culpability merit further scrutiny and outright disqualification.
  • He will be required to appear in other thematic hearings such as that on political assassinations to provide testimony on the murder of Robert Ouko and also on illegal allocation of public land where he will be required to answer to his various mentions within the Ndung’u Land Report.
  1. There are emerging reports of staff intimidation and possibilities of interfering with progress reports in which he has been adversely mentioned. He has not formally engage the commissioners or requested for a formal handover from the interim chair.

We therefore:

  1. Urge the Chief Justice either extends the mandate of the former tribunal or constitute a new tribunal that will comprehensively investigate and conclude the substantive concerns raised.
  2. In light of the substantive questions on his integrity, call for further reviews of his participation in other public bodies. This is in line with the requirements on integrity of public officers under the Constitution of Kenya.
  3. Demand his vacation from office until he has been cleared of allegations by the tribunal constituted to investigate him.
  4. Recognizing that the TJRC mandate is truth seeking, justice and reconciliation with the interest of victims at its core, we appeal to Kiplagat to honorably and morally resign in recognition of his potential to derail, delay and disrupt the transitional justice process.