Friday, February 19, 2010

The Case Against Kiplagat

Part Two of a Series of Digital Essays on the TJRC by Onyango Oloo

Before I say anything about Kiplagat and the TJRC, let me pay homage to a very good comrade and friend of mine who I have known for the last thirty years, John “Gupta” Ng’ang’a Thiong’o who died on Wednesday, February 17, 2010 08:56 am East African Time at the Aga Khan Hospital here in Nairobi after being sick for some time.


Comrade Gupta was a socialist; he was a Kenyan patriot; he was a generous and humourous friend; an articulate speaker; a tireless and fearless human rights lawyer; a doting father and devoted husband.

Ndugu Ng’ang’a Thiong’o was a survivor of the repressive state terror meted out to Kenyans by the Moi-KANU dictatorship.

We joined Nairobi University the same year-1981- and we reconnected at Kamiti prison in the mid 1980s as political convicts before reuniting again almost two decades later on my return from Canadian exile in 2005 in the streets and forums of democratic and patriotic protests in Nairobi, Gitune Forest in Meru, Mukogodo among the Yiaaku on the outskirts of Dol Dol, at Wanjiru Kihoro’s funeral in Nyeri and during the tumultuous organizing and mobilization for the World Social Forum in 2006 and 2007.

I have fond, bitter sweet reminisces of a very eventful trip to New Delhi, India in November 2006 with a Kenyan social justice crew that included Ng’ang’a Thiong’o, Mueni Lundi, Sophie Dola, the late Bantu Mwaura, Ooko “Match Stick”, Ndungi Githuku, Lydia Dola, Anne, Diana, Chris and others who were invited by the Indian Social Forum to present a dramatization of 500 Years Resistance to foreign domination, colonialism, neo-colonialism and imperialism at the Jawaharlal Nehru Stadium in the Indian capital. During a stop over of our Emirates flight, something cute, interesting and somewhat melodramatic happened to Gupta Thiong’o at the Dubai Airport, but the details of that incident will for now, be safely locked in the vault of  my private memories of our late comrade that I will savour for the rest of my life.  


At that time Gupta was the Chairperson of Release Political Prisoners having followed in the foot steps of such illustrious comrades like Njeri Kabeberi, Karimi Nduthu and Tirop arap Kitur.

Whenever a patriot like Gupta is robbed from the progressive Kenyan community you feel a crocodile’s sharp teeth gnawing at your intestines leaving a pain that makes it almost impossible to cry out loud in anguish.


But as you unleash that necessary and inevitable river of tears mixed with cayenne pepper, your mind is flooded by the Sixties era

Che Guevara exhortation:

wherever death
 may surprise us
 let it be welcome
 provided that this
 our battle cry,
 may have reached 
some receptive ear,
 that another hand
 may be extended
 to wield our weapons, 
and that other men [and women-OO]
 be ready to
 intone our funeral dirge 
with the staccato singing 
of the machine guns 
and new battle cries of war and victory.


Less well known from the pen of the same Ernesto is this pithy remark:


“If  you tremble with indignation at every injustice then you are a comrade of mine.”


Che Guevara was one of Comrade Ng’ang’a Thiongo’s favourite authors and mentors.


With the remains of our late brother lying in a morgue somewhere in the Kenyan capital, the issue of closure and justice for the victims and survivors of state repression becomes even more poignant.

As I indicated in my previous essay on TJRC and its embattled Chair, the question of truth, justice and reconciliation is NOT an “academic” discourse for  all those who went through those indignities and horrors. It is a very personal matter. Some of us cringe when we hear some people pontificating that this is NOT the time to talk about truth and justice.


For those of us who do NOT believe in an afterlife, we know this is our one and only shot at telling our story-when we are still this side of the grave; when we are still breathing and kicking. Some of us do not want our tales to be told as eulogies when we are being interred in premature graves. We have voice; we have memory; we have rage; we have demands and we want to express these ourselves, through our own mouths not through well meaning interlocutors who will paraphrase our indignation as they attempt to channel our thoughts and sentiments posthumously.


Although this sounds superfluous, it is perhaps necessary to remind some of my readers that Onyango Oloo is ALSO a survivor victimized by the Moi-KANU dictatorship that I not only feel the pain of my fellow survivors but that I live it every second of every minute of every hour of every day of every month of every year that I continue to live on this planet. 


I am stating this obvious truth given some of the phone calls I have been getting of late with some people suggesting that perhaps I do not want to see "true justice” for the victims of Wagalla, Bagalla, Burnt Forest, Kisumu, Likoni, Muoroto and elsewhere.  

Just yesterday, one of my comrades called me when I was taking lunch in one of those dingy Nairobi eateries to complain that he had "heard" that I was one of the people "supporting Kiplagat"  and that it was important for us to be on the same page! 

As if I was not part of the same sentence, leave alone the page! 

What pissed me off particularly is that this comrade had not even READ my essay but was the latest to be reached in an ongoing whispering civil society campaign against me.

But I digress a bit.


The opening salvo of this two part series of essays, In Defence of Kiplagat, elicited a wide range of reactions and emotions, from enthusiastic support to enraged denunciation.

I heard from Kenyans thanking me for articulating their silent, unspoken thoughts.


On the other hand, there were bewildered comments emanating from comrades of long standing who wondered if perhaps, Onyango Oloo had finally lost steam and enthusiasm for the struggle, if I had not just petered out, burnt out, chickened out and opted out from the frontlines of those fighting for a new Kenya.


I was both emboldened and saddened by these polar reactions.

From one end of the spectrum, I felt vindicated by the positive reviews and encouraged by comments that I had given what some of my readers  felt was a balanced view, albeit a dangerous view given the fact that I had literally put my neck on the civil society guillotine by going against the grain of mainstream human rights NGOs who had reached a consensus that one, Kiplagat must go for the TJRC to remain credible and two, that perhaps this was NOT the time to set up a truth, justice and reconciliation commission.


Apart from being emboldened and saddened, I was also somewhat amused by some of the depictions which cast me and comrades like Adongo as either “vain” “deluded” or worse as  “sell outs” to the struggle.


I say amused because arguing from a consistent Marxist-Leninist perspective I would have thought that some of us had LOWERED the bar considerably even to consider embracing the concept of such a watered down version of the TJRC.

There are basically two strands in the progressive Kenyan community.

On the one hand you find the REFORMISTS who believe you can tinker and tailor with the existing capitalist-based neo-colonial system in Kenya, urging democratic transitions here, judicial adjustments there, police shake ups over here and platforms in which victims of past injustices can vent their spleen over there.

On the other hand you find the Kenyan REVOLUTIONARIES who believe that without thoroughly overhauling the system and putting in place measures to make a complete break with the prevailing mode of production, political formations and the related infrastructures of neo-colonialism, anything you do for change would amount to farting in the wind.

These two categories are NOT separated by an ideological Chinese Wall.

Rather, it is imperative to underscore that the two camps fluidly and dialectically mesh, mould and flow into one another.

For instance, many reformists eventually embrace revolutionary positions and postures once they realize that the enemies of reform, to paraphrase the late JF Kennedy make revolution inevitable by making reforms impossible.

Then you have the situation facing radicals and militants who have to deal with concrete reality when they confront the fact that sometimes the only way to be a CONSISTENT REVOLUTIONARY is to be at the forefront of democratic, constitutional, economic, social, cultural and technological REFORMS as the only safeguard that the wananchi will embrace the need for mass mobilization and more militant platforms as they are sensitized to the fact that ruling elites throughout history have rarely conceded an inch without a tenacious fight.

It is this THIRD scenario that best describes somebody like Onyango Oloo and by extension, most of us who cut our teeth in the clandestine Kenyan socialist oriented movements of the late 1970s and early 1980s. 

We realize that even though we still dream nostalgically of a glorious socialist future, we are cognizant of the historic counter-revolutionary reverses especially following the collapse of the Soviet Union and the bureaucratic aberrations of Eastern Europe which caricatured themselves as “actually existing socialist countries”. 

We are ruefully aware that away from the international front-lines, within Kenya we lost a lot of ground because of our supercilious sectarian mistakes which propelled  some of us to shun the mass democratic movement of the early 1990s when we lampooned the efforts of the Rubias and Matibas to agitate for formal political pluralism, dismissing these former KANU insiders as charlatans, impostors and opportunists jumping on the social change bandwagon after decades of feeding at the overflowing troughs of neo-colonial greed and personal aggrandizement.

That is why we see NO CONTRADICTION in fighting for reforms while holding on to revolutionary positions. We see the two as dialectically connected.

On of our most famous gurus taught us a long time ago that the most consistent path to revolution is through being at the forefront of democratic reforms.

As we grew up ideologically we abandoned the purist, sectarian illusions and delusions of our political youth recognizing that revolutionary ideas only become a revolutionary force once the wananchi embrace these ideas- in other words, it is only when hundreds of thousands of Kenyans, realize, from their own concrete lived experiences that the ultimate solution is far reaching national radical transformation that we will make that quantum leap.


Between 1992 and 2010 Kenyans who consider themselves progressives have actively participated in FOUR multi-party elections contested under the existing draconian constitution. Should we have waited for the ideal conditions to prevail before we ventured into those contests challenging the monolithic suffocation of the Moi-KANU edifice?

In 1992 a section of the Kenyan Left boycotted the elections because KANU and Moi were still in power.

Unfortunately for such comrades, the Kenyan wananchi who were politically hungry and hankering for democratic change went ahead and embraced ANYBODY who was even remotely seen to be waving the banner of reforms. 

As a consequence, charlatans from the Moi-KANU yesteryears repackaged themselves as “democrats” even “second liberationists” who were elected to parliament with landslides before the voters realized that underneath the freshly painted “reformist” veneer lurked a throwback to the KANU old guard. This was a bitter lesson repeated in 1992, 1997, 2002 and 2007.

My point is that in the process of fighting for a new Kenya we must have a firm revolutionary strategic agenda while being extremely flexible in terms of immediate and short term tactics. These tactics must pass the litmus test of being grounded in  people-centred principles rather than ephemeral political expediency.

I will use this approach to suggest another way of looking at the TJRC process.

But before I do that, let us revisit The Case Against Kiplagat.

Instead of paraphrasing, let me reproduce verbatim a statement released on February 16, 2010 by the International Centre for Policy and Conflict, one of the Kenyan civil society organization at the forefront of agitating for the removal of Ambassador Bethuel Kiplagat as Chair of the TJRC:


Press Statement
Tuesday February 16, 2010
Kiplagat must be held accountable for his past
 
The International Center for Policy and Conflict support the move by Kenyans on vigorously pressurizing Ministers, Permanent Secretaries and other holders of public office on accountability and corruption. In this regard, we find it curious that despite compelling evidence tabled before the Truth Justice and Reconciliation Commission (TJRC) Commissioners, Kenyans are conveniently turning a blind eye on Chairman of the TJRC Amb Bethwel Kiplagat, against whom enormous evidence has been adduced. 
He lacks legal and moral probity to be at the helm of the Commission. It is very clear that at no one given time had the victims and or Kenyans ever questioned whether Kiplagat is legally in the office or not, or as to whether he is executing the mandate of the Commission. Kiplagat's assertions yesterday are clever tactics of avoiding the address himself to the evidence before him. We need not remind Kenyans that TJRC unlike other commissions of inquiry is and must as of necessity be victims centered.  
We find it unacceptable to practice double standards. While on one hand we are vigorously pressurizing holders of public offices to account for the corruption and impunity they presided over, on the other, we are conveniently turning a blind eye of such a fundamental process like Truth Commission. We must face truth to uncover the past truth. Kiplagat must be held accountable for his past record. 
 
 Ambassador Kiplagat constant quoting and assertion of his legal and mandate are diversionary tactics from addressing the core issues at heart of victims and Kenyans: Accountability of his past role in human rights violations and beneficiary of public land. We stand by our position that his appointment contravenes the provisions of Article 10 (6) (a) (b) (c) read together with article 6 (b). Kenyans need to understand that according to the Act the Chair has the sole responsibility of "directing and supervising the work of the Commission". 
 
The fact that Kiplagat is adversely mentioned in the Commission Inquiry into the Irregular/ Illegal Allocation(Ndung’u Report) is enough prove that he fails on account of the provisions of Section 10 of the Truth Justice and Reconciliation(TJRC) Act 2008. The Act clear stipulates, thus “Notwithstanding the provisions of subsection (5), no person shall be qualified for appointment as a Commissioner unless such person---- (a) is of good character and integrity, (b) has not in any way been involved, implicated, linked or associated with human rights violations of any kind or in any matter which is to be investigated under this Act. TJRC is expected to investigate and scrutiny of historical land questions. 
 We have in the last two weeks tabled compelling evidence on Kiplagat’s involvement in part of the dark past that the TJRC is mandated to uncover other than other strong pointers of iniquity. We would like Kiplagat and to an extent the commissioners to controvert the evidence we have so far provided. 
 We find it also embarrassing for Justice and Constitutional Affairs Minister Mutula Kilonzo to challenges those with evidence to address it to his office. It is clear that we have given Kiplagat and his team not only enough evidence but also particulars thereof on his unfitness to head TJRC. It is in the spirit of holding people accountable to their action in public offices that we challenge Kiplagat and his team to address the issues raised other than skirting around them. We further urge Kenyans not to be assuage into accepting double speak on accountability. 
 
Signed by
Ndung’u Wainaina 
Executive Director
International Center for Policy and Conflict


Ndung’u Wainaina 
Executive Director 
International Center for Policy and Conflict 
P.O. Box 44564 -00100 Nairobi, KENYA 
Tel: +254 722 425 167 +254 20 247 3042 
E-MAIL:wainaina.n@gmail.com
  admin@icpcafrica.org 
Website: www.icpcafrica.org


More specifically an earlier document jointly published on February 7, 2010 by the Centre for Multi-Party Democracy and the International Center for Policy and Conflict on behalf of half a dozen other human rights-based NGOs details the concerns of civil society bodies at the forefront of demanding the resignation of Ambassador Bethuel Kiplagat:

PRESS STATEMENT

IMPUNITY-FREE TJRC BOGGED BY CHAIR’ S CREDIBILITY CRISIS

 Sunday 7th February, 2010

We want to state categorically that Kenyans quest for an impunity-free, credible and dependable Truth Justice and Reconciliation Commission is undeterred. Kenyans have had enough of 37 or so public pressure pacifying commissions and task forces that consume billions of hard won tax payers’ money with little or not impact at all because of lack of implementation. Kenyans do not want a TJRC which is an accomplice to perpetuating impunity; they need one that is an agent of transitional justice.
We are back here in our persistent call for the resignation of the Commissioners en masse for allowing an illegal and irregular process to proceed and for refusing to heed Kenyans calls to deal with the various anomalies in both the law and the composition of the Commissioners. In order for this commission to be successful it must be made up of members with un-impeachable integrity who do not have a point to prove. This commission must not only have the power but the political will to follow the truth however painful to wherever it goes. This is too important to leave to an assumption. The process leading to the setting up of this TJRC strayed from the law governing the process and our fundamental principles of integrity, accountability and legitimacy. The TJRC must hold itself to a higher goal and a higher power as it is a fundamental component of the justice-seeking step towards reconciliation for Kenya. As part of the process, the commission after knowing the truth should be empowered to remedy including awarding compensation to the victims.
Our country's greatness has to be guided and supported by our willingness to take a serious and thorough look at our mistakes. While it may be unpleasant, not doing so would compound the error, and increase the chances that it would be repeated. We cannot continue being a hypocritical nation that only lives up to its ideals when it is convenient. It is our time and within our capacity to change the course of history for this nation, this is not the time to blink or close our eyes pretending that all is well. Hardly anything is well. 
We remain convinced that only an independent truth commission that yields the necessary credibility, legitimacy and confidence of Kenyans would be the surest way to conduct a thorough investigation of all that went wrong over our horrendous past, so that we can genuinely get to the full truth and hold lawbreakers accountable. It would be a big mistake to waste such a historic opportunity by allowing the current TJRC to proceed with impunity. 

In this regard we would like to communicate the following to the people of Kenya: 
Civil society’s role is to critically scrutinize and monitor the TJRC as a necessary ally in achieving sustainable peace in Kenya based on the rule of law and human rights while exercising constructive engagement.  
We stand on principle. If Kenyans and our international friends mean what they say in dismantling impunity they must not appear to condone or endorse it. 
The provisions of the Section 10 (6) (a) (b) (c) of the TJR 2008 Act are very central to our impunity-free, credible and dependable Truth Commission demand. We quote them yet again, “Notwithstanding the provisions of subsection (5), no person shall be qualified for appointment as a Commissioner unless such person---- (a) is of good character and integrity, (b) has not in any way been involved, implicated, linked or associated with human rights violations of any kind or in any matter which is to be investigated under this Act; and c) shall be impartial in the performance of the functions of the Commission under this Act and who will generally enjoy the confidence of the people of Kenya”. These provisions read together with Section 6(functions of the Commission) of the TJR Act 2008, specifically 6(b) --- “investigate the context in which and causes and circumstances under which the violations and abuses occurred and identify the individuals, public institutions, organizations, public office holders, the state, state actors, or persons purporting to have acted on behalf of any public body responsible for or involved in the violations and abuses”. 
Kenyans have to understand the enormity of implication of overlooking Section 11 (4) which provides inter alia: - “supervise and direct the work of the commission”. The assertion that the Commission is developing a code of conduct on conflict of interest is a diversionary tactic based on jurisprudence of convenience that cannot withstand the slightest juridical surgery. It can never override the explicit provisions of the TJR Act, 2008.
In respect to these provisions in the TJR Act 2008; we give evidence which questions the integrity on the person of the chair as below:  
Corruption and land grabbing:
H.E. Ambassador Bethwel (Bethuel) Kiplagat is named in the Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (popularly known as the Ndung’u Commission of June 2004) as beneficiary of public land: page 798 Volume 1; Item 104: HG544 L.R. No. 3734/83, Lavington, 0.354 Ha; allocated 1988: with the subsequent recommendation by the presidential commission that the allocation be revoke. (see attached details);
We have further information that property LR. No. 575, a farm in Trans Nzoia was to be allocated @ 10 acres per member of the Liyavo Farmers Cooperative but with President Moi’s interference every member was allocated 5acres with instructions that the balance of 120 acres be allocated to H.E Bethwel (Bethuel) Kiplagat which he later sold to former PS. Finance; Mr. Joseph Mahero Oyula (see attached details).  
Political and Human Rights:
As High Commissioner in the UK, he received several petitions from 1982 by the London Committee for the Release Political Prisoners in Kenya (RPP) to forward and appeal to former President Daniel Arap Moi (see a copy of such an appeal). However instead of assisting the victims of torture and political detention as named in those reports, the Amb. seems to have used the information to implicate human rights campaigners like Hon. Dr. Wanyiri Kihoro – detained in 1986 for three years (after spending three months under torture in the infamous Nyayo House). In his book ‘Never Say Die’ Kihoro gives details of the grounds for his detention which were delivered to him in Naivasha Prison as follows: ‘…that when you were in London, between January 1982-Jan 1986, you were involved in activities which were dangerous to the good government of Kenya in that you coordinated the activities of the Committee of the Release Political Prisoners in Kenya’. 
In his book ‘Blood on the Runway: The Wagalla Massacre of 1984’ Abjad Howartz Xudayi (also known as S. Abdi Sheikh) who is also a founding member of the Truth Be Told Network; a lobby group working to bring the perpetrators of Wagalla Massacre to justice, Xudayi tells the readers that as Permanent Secretary Foreign Affairs Amb. Kiplagat is said to have participated in a high level security meeting on or around 7th-8th February 1984 – his name appears among others in the visitors’ book at Wajir District Commissioners office and in the DC’s annual report as a participant in a high level Security Committee meeting which is alleged to have subsequently ordered the actions which led to the infamous Wagalla Massacre. 
Credibility on the international peace processes:
Amb. Kiplagat has defended himself on his peace role in Somalia. Look at how far peace is from Somalia;  
His role in Mozambique and work with the Renamo rebel group has been challenged including facilitating the rebel leader Afonso Dhlakama with a Kenyan passport to fight an independent African government; 
Conclusion:
The Chair being the most visible embodiment of the Commission, his credibility has to be above reproach. The wheeling and dealing at the international and local level is beginning to emerge as the core character otherwise, why would Amb. Kiplagat force himself on Kenyans and refuse to back down after so many people who do not know each other, and have never met before, quote him in a number of instances even in books which he is not on record as having challenged before yesterday. 
The perception that Amb. Bethuel Kiplagat has a human rights record to defend is a terrible misfortune that will adversely affect the work and performance of the TJRC. For instance, there will be individuals and even communities that will ignore the TJRC because of lack of confidence and trust in the institution resulting in an ineffective commission or one that will emerge with insufficient, insignificant and an inaccurate report.  
Our position is to advocate with vigour for an independent, impunity-free TJRC that enjoys the confidence of all Kenyans and reaffirm our position that Amb. Bethuel Kiplagat must resign and allow Kenyans to proceed with their reform agenda. He has fallen far short of satisfying the legal and public requirements of the job so that he could effectively deliver on truth, justice and reconciliation. 
 
Signed by; 
Njeri Kabeberi, Centre for Multi-party Democracy (CMD-Kenya) 
Ndung’u Wainaina, International Centre for Policy and Conflict, ICPC 
On behalf of: 
Haki Focus 
Transitional Justice Working Group 
Victims’ Rights Advocacy League 
Center for Human Rights and Democracy 
Kenya Land Alliance 

Coast Peace Network

On Wednesday,  February 17, 2010, the Kenya Human Rights Commission  in  a statement signed by their Chairperson Professor Makau  Mutua released their official position on Ambassador Kiplagat basically making three demands: the immediate resignation of Kiplagat as Chair of TJRC; failure to which the Chief Justice should constitute a panel to investigate the allegations against Ambassador Kiplagat and thirdly, if and when Kiplagat is out a Selection Panel in liaison with the Parliamentary Committee of Legal Affairs and Administration of Justice should embark on a process of getting his replacement.


In my earlier digital essay,  titled In Defence of Ambassador Kiplagat, I attempted to give the other side of the story and I will just repeat the relevant excerpt:


But here is what Onyango Oloo has to say to some of those charges.
So what if he was a senior official who served under Moi?
Mwai Kibaki was Moi’s lieutenant and a senior minister under Kenyatta yet in 2002, he was elected by a landslide by millions of Kenyans with human rights activists and civil society bodies at the forefront in embracing him as THE REFORM candidate against Moi’s handpicked successor, Uhuru Kenyatta.
One of the people said to have helped organized the brutal public flogging of Reverend Timothy Njoya is a senior cabinet minister, belonging to ODM, a party in the Coalition government that many Kenyans associate with reforms.
There are countless others.
Therefore merely serving under Moi is not reason ENOUGH to condemn Ambassador Kiplagat.
How about the business with the RENAMO bandits?
Well, I did take my time to do my research.
I spent about two hours perusing a book I found online titled Ending Mozambique's War: the role of mediation and good offices by Cameron R. Hume which runs to 162 pages and was published in 1994. The book details the role played by Ambassador Kiplagat in the peace mediation efforts to reconcile the warring factions of the ruling FRELIMO government and the rebel RENAMO movement. It is clear from the narrative in the book that Kiplagat was appointed by the Kenyan government as a mediator and was included in the peace process first as an observer, and later at the insistence of RENAMO, as a fully fledged mediator. It is true that he was very close to the rebel group and was in some instances more of an advisor of RENAMO rather than an impartial mediator. He helped to facilitate the stay and passage through Kenya of high ranking RENAMO officials- but strictly in the context of the regional and international mediation efforts to restore peace to Mozambique. There is nothing in the public domain which indicates that either personally or as an emissary of the Kenyan government did Ambassador Kiplagat arm or finance RENAMO’s bloody carnage. If there are any other facts that contradict my assertion, I would be happy to see them.

Apart from Mozambique, Ambassador Kiplagat has been involved in conflict transformation processes in neighbouring Uganda, Sudan and Somalia.

Did Kiplagat attend a security meeting just before the Wagalla Massacre? According to a recent interview carried by one of the Kenyan dailies, he denies this.

My second reason for defending Kiplagat has to do with my own personal interaction with the man.

I remember moderating a daylong meeting on the 22nd of December 2006 held at the Professional Centre in downtown Nairobi featuring hundreds of slum dwellers from Mathare and other informal settlements in and around the Kenyan capital. The focus of the gathering was to bring different tribes and communities together to dialogue around the then raging violent conflicts in places like Mathare. The grass roots organizers who put the event together were largely members of the radical Bunge la Mwananchi social movement. And one of their key supporters was none other than Ambassador Kiplagat (through Friends of Sports in Kenya) who along with the feisty and fearless Ms. Philo Ikonya and civil society leader Achoka Awori from the Sayari think tank were the main panellists at the meeting. The well attended event came up with very key recommendations around peace-building and conflict transformation. At the end of the meeting I could see Luos and Gikuyus hugging and pumping each other’s hands and I do know activists from both communities who later on carried on the spirit generated by this meeting to hold reconciliation and peace meetings in the same neighbourhoods at the height of the 2008 post election violence. How do I know all this? Well apart from moderating the session, I still have the DVD which covered every single minute for posterity. And lest you think my recording is fake, I will have you know that it was captured by none other than the intrepid PK Thumbi from the NCEC who Cyprian Nyamwamu, Kepta Ombati and Sophie Dola can vouch for.

Almost two years later, I still recall vividly something that Ambassador Kiplagat did at the height of the Kenyan post election violence in early 2008. Some of my readers may remember a period when those patriotic Kenyans who happened to be of Gikuyu heritage and were working for peace, conflict transformation and national reconciliation were targeted with direct death threats. I am talking about death threats to people like Maina Kiai, Muthoni Wanyeki, David Ndii, Njeri Kabeberi and dozens of others working under the auspices of Kenyans for Peace, Truth and Justice. One of the less known activists in this category was a young militant known for his community organizing with Bunge la Mwananchi. He had been one of the main conveners of that December 2006 Professional Centre peace gathering that I mentioned above. He is one of the people who blew the whistle on the alleged meeting which took place in the State House just before the 2007 elections to plan the violence. He soon found himself on a death list and immediately went underground. Due to a number of developments that I won’t go into in the public domain, including some mistakes of his own, he found himself very vulnerable and trapped in the country. Guess who assisted him to leave the country and save his head from being separated from his body?

The same Ambassador Kiplagat.

My third reason for asking that we should not focus on Kiplagat and other personalities has to do with a few recent deaths involving some comrades that I have known for many years.

In early February 2010 we lost George Mwaura Mburu, one of the founders, along with comrades like Dr. Njenga Kaberere of the People’s Party of Kenya in the early 1990s. The late Mwaura was an indefatigable fighter for Kenya’s national liberation. Before him, Gibson Maina who was a close associate of Koigi wa Wamwere (I remember meeting Maina in Dar es Salaam in 1988 when I was an exile in Tanzania) also went to an early grave after an unequal battle with cancer. In November 2009 we also lost Paddy Onyango Sumba, a veteran patriot and democrat who came back to Kenya in 2001 after spending 19 years in Sweden where he had led the exiled ODK and been part of the diasporic movement confronting the Moi-KANU dictatorship.

All these, and many more dozens of comrades who were victimized by the one party dictatorship (whether in the penitentiaries of Kamiti, Naivasha, Kodiaga and so on or the wider maximum prison known as the Republic of Kenya) have gone to their graves with their stories untold- either in the form of biographies, or more poignantly, as testimonies to the Truth, Justice and Reconciliation Commission.

How many more ex political prisoners, former exiles, survivors of the Nyayo House Torture chambers, witnesses to the atrocities committed in northern Kenya and elsewhere will die as we continue to wrangle whether or not Ambassador Kiplagat is the most appropriate Chair for the TJRC?

How long will people like my former Toronto housemate Adongo Ogony and my former cell mate Omondi K’abir fester in the frigid climes of Canada and Norway respectively, awaiting their turn to talk, as in Adongo’s case about the callous and casual brutality of the notorious Special Branch beast Opiyo, or as in K’abir’s case, the ORIGINAL water logged torture cells set up in Naivasha prison to break the will of hundreds of innocent Air Force servicemen?

How long will the women who were raped by the GSU, AP and other security personnel in Kisumu, Kibera, Dandora, Eldoret and elsewhere during the 2008 mayhem wait to share their anguish and stories of survival as some of our comrades in the human rights community insist on the conclusion of court cases to turf out Kiplagat and his TJRC team?

And with all due respect, to my activist comrades and friends, is Betty Kaari Murungi, who is YES, married to James Orengo really the ENEMY of Kenyans seeking truth, justice and reconciliation?


For the above excerpt, I earned the ire, befuddlement and even loss of respect from a gamut of comrades and friends in the civil society sector who felt and still feel that I was undermining the struggle against impunity and becoming a latter day apologist of the very system and forces that arrested me, held me in communicado, hauled me before a kangaroo court, sentenced me to a long prison term where I was incarcerated in one of Africa’s most notorious penitentiaries where I underwent sub human and dehumanizing, brutal treatment for my temerity in raising my voice for freedom, democracy, justice and equality.

Well, I will not attempt a “defence” of Onyango Oloo because I am not the subject of this essay.

 

Quite frankly, I find those jaundiced views, ridiculous, misplaced and unfair apart from being an awkward attempt at squelching debate and discussion because once again, I have dared to raise and stick to a point of view which goes against the grain of conventional thinking- with the “mainstream” to confirm to not being the forces that have fought us for decades, but rather this time, my own comrades who seem to insist that if you are a Kenyan progressive fighting against impunity then there is ONLY ONE “politically correct” strait jacket you need to don in order to be seen to be on the side of the Kenyan ideological angels.

For now, let me go back to the book, Blood on The Runway  by Salah Sheikh which narrates, in excruciating, vivid detail the atrocities meted out to Kenyans from the Degodia clan of the Somali community during the notorious Wagalla Massacre of February 1984.

I managed to download the manuscript from Scribd.Com as a free PDF ebook.

I read every single word, comma, semi-colon, exclamation point, paragraph and chapter from page 1 to page 162.

So captivating was this real tale of contemporary Kenyan horror that I was engrossed in the book for a solid three hours from eleven thirty on a recent weekday night.


Kudos to the author (who was only six years old in 1984) for recording for posterity this crime against humanity committed by vicious thugs in official Kenyan security uniform meting out collective punishment against defenceless Kenyan women, men and children in pursuit of a state terrorist agenda during the time of former President Daniel arap Moi.

Below is the list of prominent government bureaucrats and securocrats whose names are found in the visitor’s log as having attended a macabre meeting to plan the horrific massacre at Wagalla in February 1984:


The following week, around January 25th 1984, a meeting of the Provincial Security Committee took place chaired by the Provincial Commissioner Mr. Benson Kaaria. The Provincial Security Committee deliberated on the issue as suggested by the head of Civil Service and acquiesced to the action taken by the National Security Committee. 
The members assembled included the three District Commissioners, the Provincial Police Commissioner, the various Armed Forces Commandants and other Civil Servants. The members of parliament may or may not have attended this meeting. The District Commissioner for Wajir is rumoured to have objected to the severity of the action. He was later to be sent on leave for the period following this meeting for his odd view. The new Acting District Commissioner was M. M. Tiema who was charged with the task of carrying out the operation. 
The knowledge of these events is very scant except that the meeting took place and the action agreed upon was disarmament through punishment. The original documents have not been discovered yet. The problem of piecing together from verbal account is that each witness to the event may not recall accurately what transpired. 
The action of the National Security Committee and the Provincial Security Committee were based on historical events. The practice of collective punishment was common from the colonial days. The action did not specify the venue of torture, the method and the duration of detention. The details were left to the commanders on the ground. 
The Provincial Security Committee (PSC) also forwarded their recommendation to the District Security Committee (DSC) of Wajir District. A meeting was planned. The 
meeting became more like a National Security Committee meeting because records show that high-ranking civil servants including permanent secretaries were in 
attendance. We obtained typed pages of the visitors’ book at the District Commissioner’s Office. The District Commissioner himself was sent on a temporally leave and the meetings were chaired by District Officer 1, M. M. Tiema who was acting as DC. 
Many civil servants who attended this meeting included some who at the time of writing these lines are close to the current government. The former Finance Minister, David Mwiraria, the former ambassador, Bethuel Kiplagat and the Former Provincial Commissioner of Nairobi, Joseph Kaguthi, were in attendance at this meeting. Others include the late Ahmed Abdi Ogle, former Wajir South MP, John Gituma, the then Permanent Secretary in the Ministry of Information and Broadcasting, Brig. J. R. Kibwana of Department of Defence at the time, B. N. Macharia of the Treasury, Z.J.M Kimencu a Deputy Secretary in the Office of the President, J. P. Gitui from Police Headquarters, J.P.Mwangovya of the Office of the President, Charles M.Aswani, the Provincial Police Officer of North Eastern Province, Lt. Col. H.F.K. Muhindi, J.K.Kinyanjui, Director of Land Adjudication and other high-ranking individuals in the Moi regime. 
There was one significant difference between the previous security meetings of the Wajir DSC and this particular meeting; both MPs from Degodia community were barred from attending the meeting. The former Minister for Labour, the late Ahmed Khalif consulted the then Wajir South MP, Ahmed Abdi Ogle for information on what was discussed. Ogle told Khalif that the Degodia were in trouble.


So there it is then, in black and white, the name of Ambassador Bethuel Kiplagat listed among the planners of the Wagalla Massacre.

A few hours after I posted the original version of this essay, I came across the following Standard news article on internal dissent within the  TJRC itself  over the continued stewardship of Ambassador Kiplagat.


Let us do this:

Let us NOT even attempt any kind of “exoneration” of Ambassador Kiplagat.


In fact, let us hold him GUILTY as charged, Quod Erat Demonstrandum, open and shut case!

But hey!


Wait a minute folks.

Let us read further in the book.

Somewhere towards the end, the author, Salah Sheikh has Chapter Nine entitled, “Who Is to Blame?” which runs from page 108 to 115 (at least in the electronic PDF version residing in my flash disk).


At the apex of those criminally responsible the author firmly places former President Daniel arap Moi. Just below the notorious despot he names General Mohamud Mohammed, former Chief of the General Staff and his brother Maalim who was at the time Minister of State. Other blood stained culprits are Benson Kaaria, the former Provincial Commissioner for North Eastern.

Then there is this interesting passage that runs from page 113 to 114:

The vice president of Kenya in 1984 was one ambitious Mwai Kibaki who became the president of the country in 2002 and who at the time of writing these lines is still leading the country. Mwai Kibaki may behave like he heard, saw and did no evil in 1984 but I am not convinced at all that his role was that of a bystander. 

Kibaki was the head of the National Security Council at the time and is suspected to have chaired the meeting that discussed the issue at Harambee House. Kibaki’s complicity is that even after becoming the president of the country, he showed no interest in the matter. He has never commented about the issue although all fingers point to his awareness in the matter. Many of Kibaki’s friends like David Mwiraria and Joseph Kaguthi attended the meeting at Wajir town that hammered out the detail for the operation preceding the massacre. 
Kibaki also brought back the disgraced and retired Benson Kaaria from retirement and appointed him as a director of Kenya Medical Supplies Agency. Benson Kaaria was the face of the oppressors as the survivors of the massacre tell us that he toured the area aboard a helicopter directing the operation for the duration of five days when the worst of the massacre was taking place. 

So, let us go ahead and REMOVE Ambassador Kiplagat as TJRC Chair the day after tomorrow- that is, if we cannot do it this very afternoon.

Further, let us choose among the many paragons of civil society virtue- for indeed, there are many worthy patriotic daughters and sons of the soil who are more than equal to of steering MV TJRC- to IMMEDIATELY replace the disgraced and apparently blood stained white haired veteran diplomat as Chairperson of the Truth, Justice and Reconciliation Commission.

 Voila!


Or so one would think.

The TJRC would be on course to pursue its historic mandate.

Let us assume that under this new civil society management it performs a marvellous, stupendous and all round stellar task and caps it all with a brilliant final report which names names and details far reaching recommendations for action.

Now it is time for the Big Photo Opportunity.

The time to present the final report with the glare of flashing digital cameras and other heavy duty broadcast arsenal in a throng of barking media hounds.


We know who is going to hand over the report-you know, the White-As-Snow New and Improved TJRC Chair of course.

But who is the report being handed over TO?

Well, assuming that this is done before the end of 2012 and there are no major political fatalities at the top echelons of power, it will be handed over to NONE OTHER THAN…

Drum rolls please….

His Excellency the President and First Principal Emilio Mwai Kibaki CGH, EGH, Commander in Chief of the Kenyan Armed Forces.


Just a sec, just a second folks.

Is the same Mwai Kibaki who, was not only Daniel arap Moi’s immediate Number 2, but more importantly for our purposes in this essay, the HEAD of the National Security Council WHICH PLANNED AND EXECUTED THE WAGALLA MASSACRE?

Of course it is because Mwai Kibaki, Moi’s former lieutenant, is today, Mwai Kibaki the current sitting President of this conflicted, impunity ridden Republic of Kenyans.


Dear Reader:


Let me ask YOU a particularly STUPID question:


 I seek your indulgence.

Humour me a little because sometimes I am a bit slow witted:

Between Mwai Kibaki, the HEAD of the National Security Council and Ambassador Kiplagat, who attended (we have agreed, have we not, that this indeed was the case, ama?) the fateful planning meeting in his capacity as the Permanent Secretary in the Ministry of Foreign Affairs, which former high ranking official of the Moi regime- Kibaki or Kiplagat-is MORE CULPABLE for the planning and execution of the Wagalla Massacre?


Dear Reader: 


I tricked you. 


My apologies.


It was a NOT a “stupid” question.


No.

It was a RHETORICAL question with the answer screaming in your face!

Stay with me for another two minutes on this, dear reader.

In the whole crescendo of civil society’s booming rage demanding the immediate removal of Ambassador Kiplagat as TJRC Chair, have I heard ONE WHIMPER linking President Mwai Kibaki, not only to the Wagalla Massacre, but also to his “supervisory” role in the TJRC process?

If there has been that tiny whimper, then I have not heard it-I obviously need to urgently book an early appointment with a reputable Ear, Nose and Throat Specialist.


At this point, let me go off on an ostensible tangent. In fact let me gallop to the tiny East/Central African nation of Rwanda.

The time is 1994. 


Close to a million Rwandese are in the process of being macheted, bludgeoned and butchered out of existence because of yet another genocidal (yes, there was GENOCIDE in Wagalla in 1984 alright) state engineered, ethnic powered carnage.

Who is the Secretary General of the United Nations turning a blind eye to all these atrocities?

One Kofi Annan.

Let me reproduce a Reuters news dispatch from 1998:



Rwanda Genocide Survivors Say Annan Part Responsible 



by Corinne Dufka
Reuters
May 8, 1998 

Survivors of Rwanda's genocide said Thursday that United Nations Secretary-General Kofi Annan bore a heavy responsibility for the 1994 massacres of an estimated 800,000 people. In an open letter to Annan, the genocide survivors group Ibuka said the U.N. decision to pull out its forces at the advent of three months of killings had disastrous consequences. 

Annan, who was due in Rwanda later Thursday as part of an eight-nation African tour, was head of U.N. peace-keeping operations in 1994. ``In taking that unfortunate decision to pull out its blue helmets the U.N. condemned almost 1.5 million people to certain death,'' said the letter signed by Ibuka president Jean Bosco Rutagengwa and dated Wednesday. ``This act is considered without doubt an offense of non-assistance to a people in danger and yourself and the organization you head up bear a heavy responsibility.'' 

The letter said Annan's office knew in advance a genocide was being planned but did little to prevent it. It was referring to reports that Annan's office effectively dismissed a warning from the commander of peacekeeping troops in Rwanda on January 11, 1994, three months before the killings of minority Tutsis and many Hutu moderates started. Annan said in the Kenyan capital Nairobi Monday the lack of strong will was the key ingredient for the failures of U.N. peacekeeping in Rwanda. Ibuka, a politically powerful group in Rwanda, suggested a series of ways in which the United Nations could help the country to recover from the genocide. 

These included catching genocide suspects living abroad and returning them to Rwanda for trial, setting up an international fund for genocide survivors and instituting a national day in memory of genocide victims. Individual genocide survivors said Annan's visit would be difficult, given what happened. ``They (the U.N. peace-keepers) totally let us down,'' said one survivor, 32, who declined to be named. ``Those who stayed here stayed here without doing anything. The United Nations did not make Rwanda a priority. It wasn't very important to them,'' said the survivor, who lost his parents and four siblings in the genocide. ``I was hiding in a church with my three children. I remember hearing that the United Nations was leaving. We felt so disappointed.'' Another survivor, who works as a telephone technician and also declined to be identified, said he was saved only by hiding at the Mille Cillines hotel in Kigali. ``I was on my way to the Mille Collines on the 13th April and I saw U.N. trucks passing by people as they were being killed on the street,'' said the technician, who lost between 30 and 40 members of his extended family. ``I knew then they were not going to do anything to help us. One can't just blame (military peacekeeping chief Gen. Romeo) Dallaire and Kofi Annan. All of the nations are involved,'' he said. ``I don't think they (the United Nations) understood what these people were capable of doing...It just happened too fast.'' 


 Press on this link to read a personal confession from the guy himself.

The same Eminent African Person who was to spearhead the National Accord in Kenya which among other things set in motion the process that created the Truth, Justice and Reconciliation Commission in Kenya.


Given his CULPABILITY in not doing enough to prevent the Rwanda Genocide of 1994, does the good doctor from Ghana, currently domiciled in the icy climes of Switzerland have a moral leg to perch on lecturing Kenyans about impunity?


Me thinks NOT.

Yet, how have WE, the members of the human rights section of the Kenyan Civil Society sector engaged with Kofi Annan?

Well, since it is too late to engage him in Holy Matrimony, we have done the next best thing:

We have jumped on him like a bunch of over-excited rock and roll groupies accosting their favourite Super Star du jour, covered him with wet kisses and warm hugs while twirling his septuagenarian (or is it octogenarian, I am not sure, but this is an obscure detail) limbs in exuberant waltzes and giddy fox trots belting out paeans and composing 21st century epics for his allegedly seminal role in rescuing Kenyans from themselves.

Holy Cow!

And by the way do you remember sometimes in  the year 2006 when the Kenya National Commission on Human Rights conferred an award to one John Njoroge Michuki?

If this little has slipped from your mind, perhaps this PDF document from the KNCHR will help to  jog your memory.

Now some of us do not necessarily associate the former Internal Security, Transport and now Environment  Kenyan minister with human rights activism.

In fact we tend to associate Michuki with notorious human rights atrocities, especially targeting  members and supporters of the Mau Mau liberation movement in the  1950s. His brutal torture methods when he was a young British colonial functionary earned him the sobriquet, "Kimeendero" meaning the "The Crusher" of presumably testicles.

Yet this is the very some man who was SINGLED OUT for an award by a leading Kenyan human rights organization less than five years ago!

Are you still with me, Dear Reader?

I suspect I may have lost some of you in the course of the last fourteen paragraphs or so.

So let me rejig my almost forgotten précis skills from my ancient high school days and summarize it one sentence:


IF WE IN KENYAN CIVIL SOCIETY ARE GOING TO HOLD PEOPLE ACCOUNTABLE FOR IMPUNITY THEN WE MUST BE CONSISTENT. 


If we say that Kiplagat must go, then what roles do we assign Kibaki, Annan and Company Limited?


You know THREE people who can testify effectively as EXPERTS about the suitability or otherwise of Ambassador Kiplagat?


From the book Blood on the Runway, three names stand out: Fatuma Ibrahim, a Commissioner with the Kenyan National Commission on Human Rights; Mohammed Elmi, the cabinet minister in charge of Northern Kenya Affairs and Yusuf Hassan, founder member of the London-based Committee for the Release of Political Prisoners in Kenya, UKENYA, UMOJA as well the would have been best MP for Kamkunji who was rigged out during the ODM nominations in 2007.


Fatuma Ibrahim is a SURVIVOR and therefore a WITNESS of the Wagalla Massacre.

Mohammed Elmi who was then a progressive ACTIVIST with Oxfam GB, RESCUED some of the victims, DOCUMENTED and PHOTOGRAPHED the genocide and BLEW THE WHISTLE to the outside world. As a direct result of his activities, countries like Norway broke off diplomatic relations with the Moi regime for TEN YEARS while Western states like the UK, Canada and others opened their doors to Kenyans who fled from that genocidal atrocity in northern Kenya.

When I lived in Canada I met and worked with Abdi Yalahow, currently a teacher in the Ottawa Capital region who had just moved to North America from Britain where he had worked with the Kenyan revolutionary patriot Yusuf Hassan in exposing the Moi regime from their base in London.

My comrades Adongo Ogony, Wangari Muriuki and Kathure Kebaara in Toronto must remember all those years we worked with Yalahow and Kenyans from the Somali community in mounting protests outside the Kenyan High Commission on 514 Laurier Street East in Ottawa in annual commemorations of the Wagalla Massacre- that is when we were not denouncing the grisly slaying of Robert Ouko or demanding truth and justice for the Muoroto victims of police brutality.


Dada Fatuma na Ndugu Elmi, bila kumsahau komredi Yusuf bin Hassan:

 

I urge the trio of you to please step forward and enrich our national narrative of how we as a people have survived but will not forget Wagalla, Bagalla, Garissa and other massacres.

By the way, the author of Blood on the Runway, the book which is currently Exhibit A in the Case Against Kiplagat-I am talking about the brilliant Salah Abdi Sheikh- is ironically, VEHEMENTLY OPPOSED to the VERY IDEA of a Truth, Justice and Reconciliation Commission, believe it or not.


Here is the relevant passage capturing his views (contained in Chapter Thirteen: Truth for Amnesty? in the same book):

… The Truth, Reconciliation and Justice Commission is designed to exonerate criminals… 

But why must killers go free? 
Two very interesting reasons may suffice. First truth commissions are formed in countries, which suffered civil wars leading to polarization into tribes, races or religions. The commission is supposed to halt the thirst for revenge among the population and bring about of form of settlement where the different parties can agree to forgive the past and go a head in peaceful co-existence. For instance Somalia today will need a truth commission to settle the pending scores among the population caused by the war of the last decade. Killers here will go scot-free if they come clean and ask for amnesty since they are on both sides of the divide. 
Secondly, a truth commission is formed where the population overthrows an atrocious dictatorship and replaces it with a democracy. In this case the power is in the hands of those who in the past were brutalized. Since the victims are the ones who wield the sword then the option to offer amnesty for truth is within their grasp. 
Here killers will scot-free because of the hand of mercy extended to them by their victims. 
The reasons being given in Kenya for the appointment of Truth and Justice Commission are not adequate. Kenya’s truth commission suffers a credibility problem; the president of the Republic of Kenya is not neutral. Mr. Kibaki was the Vice-president when some of the worst crimes of genocide including Wagalla massacre were committed in Kenya. He may not have had a direct hand in the crime but the concept of negligence still applies to him. Mr. Kibaki’s lieutenants were also some of the people who are likely to be investigated in case such a commission is formed. The truth commission being advanced in Kenya for political expediency and advancement of academic discourse. It is for political expediency because the truth itself is not in any dispute but wider political interests are being served by being seen to be doing something. Whilst the government is relentlessly pursuing the Goldenberg and the economic menace, it is recommending amnesty for genocide suspects and even appointing some into public service. 
The NGOs being used to push through this commission have had interests in research and inter-disciplinary studies in this matter and hence advancement of academic discourse. Being appointed to such a position as a commissioner in the TRC is a lucrative possibility for all. 
The million-dollar question is will it settle the horrors of the past? Or will it be used to witch-hunt one side and whitewash the truth on the other? It is more likely that a concept that some thought will be a panacea for their problems might actually form into their nightmare. 
Truth and Reconciliation commission is a body that is usually formed in order to try and understand why a powerful class of society used crude and inhuman methods against the lower class members of the society after such powerful members were disarmed of their excessive power and privilege. 
It was used in Argentina after the military dictatorship fell and a democratically elected government was formed. It was used in South Africa after the white minority rule was dethroned and it was used in Sierra Leone after a war that divided the country into warring factions on a tribal footing. 
The common factor among these commissions is that they were constituted after the powerful clique that terrorized the public were disarmed. The perpetrators of the crimes had used a policy (say apartheid of South Africa), a dictatorship (Argentina) and war (Sierra Leone) to justify their heinous actions. The perpetrators at the time of committing the crimes were following the procedure that they developed to commit these crimes. They could hardly therefore be called as common criminals. 
Kenya has had a relatively dictatorial past. But this does not fall either in the category of war, apartheid or military dictatorship. A TRC in Kenya therefore is hopelessly academic exercise designed to exonerate common criminals from the appropriate arm of the law. Such a commission will therefore be abused to deny justice to the victims of extra judicial actions carried out by well-known individuals. It will be a flawed exercise from the beginning. 
Real change has not occurred on Kenya. Daniel Arap Moi, Mwai Kibaki, G.G. Kariuki, and other powerful barons of our society have not melted away with the change. The president of this country was either a collaborator to some of these abuses or turned deaf ears while they occurred. Those who want to convince people that Kibaki had no idea of what happened at Wagalla, Garissa and Malka Mari are seriously mistaken or do not credit the president with much intelligence. G.G. Kariuki was on record having uttered words to the effect that a “good Somali is a dead Somali” and is known to have been the powerful Minister of State in the Office of the 

President when the Kenya army plundered, raped and robed the people of Garissa in 1982. To tell the truth, NARC, which came to power in 2002, was just as rotten as KANU since it inherited all the debris. No clean plate has been served to Kenyans and that is the fact we have to deal with. 
A TRC is a tool used to provide amnesty to people who confess to their crimes and explain why they had to commit to those crimes crude as they were. If they explain to a satisfactory level they go scot-free. For such a system to work the oppressed must have achieved power over the oppressors and be capable of retribution. Has that happened in Kenya? The most oppressed people of Kenya, the Northern Frontier Districts and other parts of Kenya, have not gained any power over the former regime while the cronies of such regimes are still in power. A TRC therefore will be a situation of forcing the oppressed to forgive their oppressors. Such actions will perpetuate the mentality that crimes can be erased from the past of powerful people, sacrificing justice for decorum. Most Kenyans are not ready therefore to commit themselves to such a state unless they have no choice. 
Gutmann and Thompson quote the brother of Griffiths Mxenge, a human rights lawyer who had been murdered by the South African police during apartheid, after hearing the confession that gained the perpetrator amnesty: "once you know who did it, you want the next thing — you want justice." They also note these lines from Alex Boraine, deputy chairman of the South African commission, about a woman listening to testimony by the killer of her husband: 
After learning for the first time how her husband has died, she was asked if she could forgive the man who did it. Speaking slowly, in one of the native languages, her message came back through the interpreters: "No government can forgive." Pause. "No commission can forgive." Pause. "Only I can forgive." Pause. "And I am not ready to forgive." 
Here is the deep moral problem of the truth commission as a substitute for the criminal justice system: It short circuits the mechanisms most societies have established to right wrongs by punishing wrongdoers. And if the South African commission was to compensate victims with money (money which has never been delivered, one must add), who can say that money substitutes for justice? Why does anyone have the right to tell that woman, or Griffiths Mxenge’s family, that the murderers of their loved ones must go free? Gutmann and Thompson ask. 
There are at least ten documented massacres in the Northern Frontier Districts. The worst of such massacres in order of gravity include Wagalla, Bagalla, Malka Mari, Garissa and Bulla Qartasi. Other massacres took place in various other places and significant lives were lost. A Typical case in North Eastern province is a family whose grandfather’s camels were massacred by the British, whose father was killed in the emergency by the Kenyatta government whose sons were victims of the Moi government at Wagalla along with the demeaning treatment of rape of their daughters and torture of their mothers. Today they live desolate without any assets and their children have dropped out of school and are addicted to Miraa and “Kuber” in order to dull their pain of existence. Who do you reconcile such people with? The Billionaire Kenyatta family who own farms in the Brazilian Sugar Belt or the Moi family who owns half of the assets of this country? Where do you start? How do you tell me to forgive the man who led to my grandfathers poverty and who today enjoys the same power over me? 
In situations like this a TRC is an austerity measure designed to hide these facts. To act as enema that instead of acting as a mechanism for swift delivery of justice clogs the system of delivery so that justice will have to be born through a caesarean section. 
Hundreds of thousands of families in the NFD live in this situation and to tell them of TRC is to ignore the historical and economic effects of these massacres. 
After 40 years of independence, NFD has not changed even slightly. No system works. Education is in shambles, Health sector is vector-spreading dragon, investment is non-existent and infrastructure is at medieval stage. Poverty is the common factor among our people. It is stupid and utterly insensitive to expect to reconcile us with Kenya on such issues. People in North Eastern are not unaware of the hardships they endure because of their annexation to Kenya. They did not forget their means of livelihood being blundered and being reduced to destitute. They did not forgive the unnecessary hardships that they endure due to the lack of roads network in the province while it is known that the donor money that was used set aside for those roads were diverted to other “worthy” projects. People of this area know that they live on the bank of rivers and they have not had clean water for forty years. People of North Eastern know that someone is responsible for this state of affairs. To tell them that they should be reconciled with the person responsible once the truth is acknowledged by that person is to ignore the extent of damage and the fact that there is little hope for the future to change such a province. They do not need a TRC to tell them what they already know.

Just for the record, Onyango Oloo happens NOT to share Salah Abdi Sheikh’s rather dour and sour view of the Truth, Justice and Reconciliation Commission.

I happen to think that WE, the victims and survivors of all these oppressions, atrocities and crimes against humankind NEED a TJRC, not least for its healing, restorative aspects.

We need closure, and when I say we here, I am stretching back as far the survivors and veterans of the Mau Mau War for National Independence and beyond.

Apart from closure, we DEMAND Justice. 


We already KNOW the truth. 


I expressed these thoughts in a poem I wrote in 2004 called “Who Will Bell the Cats of Goldenberg”:


Monday, February 23, 2004

What are we going to do


with all this pain
What are we

going to do
with all this pain

What
are we
going
to do with all this pain

What are we going to do

What
Are we
Going to do
With all this pain

We have finally 
started rummaging 
through the
Piles and piles 
of dirty secrets 
from our own recent, 
gory, blood-stained
Chapters of shameful, repressive memories
Of dictators doing dreadful things on Fridays
Before strolling to church on Sundays
Whistling cheerful tunes

Like overflowing uji, 
we see 
the truth spilling out
From the mouths 
of long lost 
house maids
We hear 
the terrible truths 
of ministers 
dragged to their
Brutal ends 
whilst farm hands 
boasted of hyenas 
bleating for mercy

What are we going to do with all this blood
What are we going to do with all this blood
What are we going to do with all this blood

All this blood spilling 
on to the front pages 
of our national conscience
What shall we do 
with all this blood
All this blood splattering 
the well known pin striped suits

For months 
we have heard 
of the robbers 
in the cabinet
Supervised by 
their god fearing 
warlord 
as they stripped
The Central Bank empty
What shall we do 
with all that shame
The shame 
of leaders 
looting our national coffers

These commissions of inquiry 
to find out 
the well known truths
Seem to be travelling 
on well worn paths 
to familiar obscurity

What shall we do with all these painful truths
What shall we do with all these painful truths
What shall we do with all these painful truths

What shall we do 
with all these shameful facts
What shall we do 
with all these shameful crimes


We know that 
Moi and Saitoti 
and his sidekicks stole
They grabbed 
and they looted
They swindled
 and they confiscated
All in the name of power, 
in the pursuit of greed
Worshipping 
King Avarice 
and Queen Arrogance

We have known 
for a while that 
Nicholas Biwott and 
his shadowy sidekicks 
were fingered
As the masterminds 
in all those dastardly crimes
Crimes of kidnapping
Crimes of torture
Crimes of grievous bodily harm
Crimes of premeditated 
colded blooded murder
Crimes of cover up
Crimes of deceit
They have been fingered
And they have never 
even bothered to clear their names
In the comfort that 
power was on their side
And the killers were on their payrolls

Today they can try and pin 
the murders on the murdered ones
And the Central Bank robberies on the incarcerated ones
Pattni will be made to pay 
because he is the Indian Scapegoat
As the real Goldenberg Mafiosi 
look to the Mafia barons in power for salvation

Who will bell the cats of Goldenberg
The mice of Kenya are asking
Who will bell the cats of Goldenberg

But what are we going to do 
with all this shame, all this pain
What are we going to do 
with all these painful truths

It is not the truth we seek, 
for we have had it for a while
It is not proof we need, 
for it was all clear as mud
Even those crimes 
committed in the dead of night

What we seek is not truth, but justice
What we seek is not truth, but justice
What we seek is not truth, but justice
It is justice we seek for we know the truth
It is justice we seek for we know the truth
It is justice we seek for we know the truth

What we seek is not 
closure, 
but punishment
Let the robbers 
get their day in court
Before they start 
their years in Kamiti
Let the killers 
get their day in court
Before they start 
their long sojourn in G Block

It is time they exchanged 
their three piece suits
For the new uniforms 
of Kamiti and Manyani
They did the crimes, 
now it is time to do the time

But who will take 
the first step 
of attaching the handcuffs
On those leading suspects
Who even as we speak 
chortle in the back seats
Of their tinted limousines

As we write, the country awaits a reshuffle
That will bring the robbers and killers back to centre stage
And that is why I ask
What shall we do with all this pain
What shall we do with all this pain
What shall we do with all this pain

We must do something with all these painful truths
We must do something with all these painful truths
We must do something with all these painful truths

We must do something 
to wash away 
all this shameful blood 
of the innocent

Before a gaping wound opens up to consume us all.

Onyango Oloo
Montreal
8:25 PM
Monday, February 23, 2004


Of course this poem is almost a perfect echo of some of the anguished and angry angst expressed by Salah Sheikh in the long excerpt above.

My larger point is that on the question of impunity, historical injustices and past criminal acts against the Kenyan people, we have a wide variety of views from people who essentially are NOT coddling or condoning any of the perpetrators.

We need to listen, really listen with our inner ears to what each one of us is saying.

We do NOT have to AGREE with one another at all- but that is the beauty of democratic discourse.

As long as we agree on one fundamental fact:

These dastardly deeds were not only WRONG, but should NEVER EVER HAPPEN AGAIN, but more than that, those responsible should be PUNISHED, not with a slap on their wrists, but with effective, CUSTODIAL SENTENCES without the option of fines, kapish?

In this context, what we need are the INSTITUTIONAL frameworks for ensuring TRUTH and JUSTICE, I am far less enthusiastic about “reconciling” with my past torturers and jailers.
Should we CARE who is appointed to such commissions?

Of course we should.

And speaking of QUALIFIED CANDIDATES, how many of us in civil society have been valorizing the suitability of past victims like for example, survivors of the Wagalla Massacre, Mau Mau veterans or former political inmates from Kamiti, Kodiaga, King’ong’o, Naivasha or Shimo la Tewa prisons?

The archetypical Kenyan civil society model candidate for the TJRC Chair is more than LIKELY to be a less than modest LAWYER, a middle class TECHNOCRAT, a timid “non-political” FENCE-SITTER or a prominent NGO entrepreneur.

Where are the ACTIVISTS (especially of the hard core, militant, left wing variety) on your priority list of likely replacements of/alternatives to Ambassador Kiplagat?

By the way is it true that at least ONE of the civil society individuals at the forefront of calling for Kiplagat's removal had quietely  dropped off their  own CV at the  TJRC for the same job?
 
I could go on and on for fourteen more pages, but I guess by now, you have caught my drift, ama?

Onyango Oloo

Nairobi, Kenya







2 comments:

Tao said...

Oloo,
an appeal for vision and reason;a call to take up constitutional arms; an analytical survey of reform events- yesterday and today with tommorrow in mind; a prick on national conscience;a distinction between strategy and tactics;

I salute you Oloo.

tao

Mathare News said...

that is a well written paper, i hope people can read it with an open mind
simon