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THE KENYAN HUMAN RIGHTS COMMISSION REPORT (PART 2) – METHODOLOGY, OMISSIONS, THE CONSTITUTION AND ‘CIVIL SOCIETY’

In an article published in The Star on Thursday 25, Yash Pal Ghai described what he termed the KHRC’s ‘interesting methodology’ in producing its report Lest We Forget: The Faces of Impunity in Kenya, ‘namely by mining existing reports’ in which were already contained ‘a considerable amount of evidence’ that had been ‘marshaled against perpetrators by official processes, through commissions of inquiry or parliamentary committees, or other forms of investigation’. In short, he was suggesting, there’s already a lot of evidence out there, let’s at last use it.

In this line of argument Yash Pal Ghai and the KHRC make a very valid point. Much work has been done over the years in attempts to reveal those responsible for acts of murder, corruption and other wrong-doings in Kenya but little has happened as a result. So, the argument goes, don’t reinvent the wheel, use the information the various inquiries and reports contain to go after the culprits and redress past wrongs.

There are several problems however associated with this general approach and specifically with the approach taken by the KHRC.

LEST WE FORGET: THE IMPUNITY OF PAST INQUIRIES

First, as the Forum will investigate over the next few days, past inquiries and commissions have themselves not all been immune from accusations of acting with ‘impunity’. One cited by the KHRC’s report, the Gor Sunguh Committee Report into the murder of Dr Robert Ouko, was perhaps one of the most disgraceful episodes in recent Kenya history that not only failed to find the truth but deliberately obscured it. To base justice in the Ouko case on the Gor Sunguh ‘farce’ would result in a serious miscarriage.

[Readers might like to read the Forum posting of July 17, ‘Gor Sunguh owes more than Sh3 Million and an apology to Oraro over Ouko Inquiry’, and also a posting found at www.tandrcforum.net/blog dated 22 July entitled ‘Ouko killed in State House? Gor Sunguh should be questioned’.]

LEST WE FORGET: MISSING SOMETHING?

Second, the KHRC are guilty of being somewhat selective not only in the choice of reports and inquiries on which they based Lest We Forget and those they did not, but also as to which sections they were prepared to publish of the reports and inquiries they did refer to.

For example, the sections of the KHRC’s report relating to the murder of Dr Robert Ouko were based on the Gor Sunguh Committee Report (heaven help us) and the British Scotland Yard detective Troon’s ‘Final’ report. Why was the Kenyan Police Further Investigation Report omitted? Was it because the Kenyan Police came to conclusions that the KHRC did not like? What of the Gicheru Commission, why was it omitted? Was it because the testimony given at that inquiry proved that Troon had got it wrong?

Of the reports that the KHRC did cite, for example the Ndung’u Report into the ‘Illegal and Irregular Allocation of Public Land’, why were some individuals named in those reports not named in Lest We Forget?

Yash Pal Ghai was confronted by this in the response to his article in The Star. One reader responded by quoting from the Ndung’u Report: ‘The Odinga family’s acquisition in February 2002 of the Kisumu molasses plant and the 112 hectares of land it is standing on was illegal, and recommends further investigations.’ He/she then commented, ‘Now that you used the Ndungu Land Report and the Maize Scandal report to incriminate many other people as the “faces of impunity” any reason why this big face of impunity called Raila Odinga & Family is missing?” There were other postings along those lines.

Well Professor Ghai, what’s the answer?

THE NEW KENYAN CONSTITUTION IS NOT SELECTIVE

The third area of concern the Forum has over the KHRC report is that its authors, both in the report and in their comments conveyed in the press, seem also to be selective as to how and to whom they apply Kenya’s new constitution.

The new constitution guarantees the right to a fair trial and a fair hearing, it demands the respect of the rights and reputations of others, and provides for the ‘right to correction’. Under the constitution we can now expect to know who is accusing us, what evidence they claim, and have the opportunity to refute it. Above all, the new constitution states that an accused person is ‘innocent until proven guilty’. Being ‘adversely named’ by unnamed accusers will no longer do.

The KHRC fully supports the new constitution (quite rightly so) but they still want those alleged to have committed crimes to be held as guilty until they can prove their innocence, assuming they will ever be given a chance to do so. We may not like some people, we may be convinced that they are guilty, but they are not guilty until a court of law proves them to be so. We cannot selectively apply our new constitution.

‘CIVIL SOCIETY’: PRINCIPLED OR PARTISAN?

The Forum’s final area of concern about the KHRC’s report and some of those behind it is a worry that Kenya’s ‘civil society’, which has a vital role to play in building a fair and just country, is in danger on occasions of being tainted by partisan political bias together with a desire for selective revenge, of calling for transparency and truth whilst often being less than transparent and truthful itself.

The Forum will address these concerns in postings over the next few days.

COMING UP TOMORROW:

 

THE KENYAN HUMAN RIGHTS COMMISSION REPORT (PART 3)

LEST WE FORGET: PAST INQUIRIES HAVE ALSO OPERATED WITH IMPUNITY –

THE SUNGUH ‘FARCE’

President Kenyatta declared winner.

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