January 16, 2012


It has been firmly decided that someone else will decide.

More by Correspondent

Bethuel Kiplagat, Nancy Baraza And The Date Of Kenya’s Election

Bethuel Kiplagat, Nancy Baraza And The Date Of Kenya’s Election

Firm decisions have been taken over the futures of TJRC chairman Ambassador Bethuel Kiplagat, Deputy Chief Justice Nancy Baraza and the date of the next election. In each instance it has firmly been decided that someone else will decide.


It was back at the end of November that the High Court ruled Kiplagat had been properly appointed as the chairman of the Truth, Justice and Reconciliation Commission (TJRC), which left the matter to a tribunal as to whether he could really resume his duties.

The commission, or tribunal, set up in December 2010 to look into Kiplagat’s suitability as TJRC chairman (surely this should have been done before he was appointed?) did not complete its work as its term expired before it had completed the task. On January 4 Kiplagat returned to his office at the Commission.

A few days later and a parliamentary committee ruled that Kiplagat couldn’t return to office until his fate had been decided by the courts, although the good Ambassador and would-be chairman told a Standard reporter that he was “back with a bang”.

Four days later the TJRC petitioned the High Court to stop Kiplagat from resuming office by compelling the Chief Justice Willy Mutunga to appoint a tribunal to investigate allegations against him, or to re-constitute the tribunal headed by Justice Evan Gicheru.

Where are we now? The Kenya Forum does not know, and nor, it suspects, does anyone else. Bethuel Kiplagat should probably, by the letter of the law, be allowed to resume work at the TJRC. Commonsense says he should do no such thing. No one is taking a decision in any event. The absurdity that is the TJRC goes on.


Ominously, Friday 13 January was to be the day that key decisions were to be taken over the fate of Deputy Chief Justice Nancy Baraza and the day on which the date of the next election was to be decided, so we were told. It was to be but in the end it wasn’t.

As the matter is in some senses sub judice and anyway the Forum doesn’t know anymore than anyone else as to the truth behind allegations that the Deputy CJ, Nancy Baraza, threatened a female security guard at the Village Market shopping centre, or tweaked her nose, or even just behaved in a high-handed fashion, we will not speculate on the matter. What we can consider is the manner in which this saga has been played out.

Last Friday, Chief Justice Willy Mutunga announced that the a sub-committee of the Judicial Services Commission had recommended Nancy Baraza’s suspension and sent a petition to President Kibaki ‘pursuant to Article 168 (4)’ of the constitution. It will now up to the President to name a seven-member tribunal to investigate the allegations against Ms Baraza.

Willy Mutunga and his sub-committee surely took the right decision. In fact they took just about the only decision they could make in accordance with the constitution, so all well and good. The comments, thoughts and movements of Baraza and her accuser, security guard Rebecca Kerubo, have however been widely reported in the media, as have the views of the Director of Public Prosecutions, Keriako Tobiko and others. There has also been a mass of comments published on the subject. A little bit of silence from all concerned until the matter had been properly investigated and fairly adjudicated would surely have been more appropriate, says the Kenya Forum.

And so to the much awaited decision by the High Court as to the date of the next election.

Seemingly sane and rational people have in recent weeks argued that the next election must be held in August of this year, or that it should be in December, or that it cannot possibly take place until March 2013. Most quote the new constitution in support of their argument.

The ruling of the three judges was clear. The election could take place in 2012 if President Kibaki and Prime Minister Odinga dissolved the government. Of course, said the judges, if they Kibaki and Odinga don’t dissolve the government then the election will take place after end of the parliament, that is, after January 14. Or indeed, it could take place any time up to some point in March 2013. In short, the High Court has handed over responsibility for the decision as to the date of the next election to the two big men, President Kibaki and Prime Minister Odinga.


Writing in the Sunday Nation, Makau Mutua, could barely conceal his fury at the decision. It was clear, he wrote, that the Committee of Experts had, ‘bungled the date of the first election under the new constitution’. The High Court had ‘flunked its most crucial test’ he argued, by failing to take it responsibility to resolve the constitutional problem.


‘The primary charge of the Judiciary is to resolve constitutional problems’, Mutua declared, ‘The superior courts have the last word on the meaning of the Constitution. That’s why it boggles the mind when the High Court punts the ball back to the political class… It’s not the job of the High Court to give “scenarios”. Its job is “to decide” not “to speculate”’.

Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission (KHRC). The Kenya Forum has not always agreed with Mr Mutua (or indeed with the KHRC) but in this matter he got it right. Over the issue of the date of the next election Kenya’s High Court passed the buck.


Related Articles