Kenya is a country that has been scarred by inter-tribal violence particularly at the time of elections. It was right and proper therefore that the Kenyan Human Rights Commission (KHRC) addressed this issue in their recently published report Lest We Forget: The Faces of Impunity in Kenya.
Numerous names listed in Lest We Forget are set against the accusation of involvement in ‘Gross violations during the politically instigated violence in Rift Valley Province’ between the years 1991 and 1998. The bases for the allegations are principally contained in two reports; the findings of the ‘Kiliku Committee’ placed before the Kenyan National Assembly in 1992 and the ‘Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya’, the ‘Akiwumi Commission’, published in 1999.
The problem again is that past inquiries into tribal clashes have themselves operated with impunity, not letting little matters like the facts, lack of evidence, discredited testimony, or questionable procedures get in the way of their findings.
The history of the allegations of involvement in promoting inter-tribal conflict, the sources from which they derive and their handling by Kiliku, Akiwumi and others are illuminating and provide a cautionary tale.
PRIVATE ARMIES AND ‘KALENJIN WARRIORS’
It was on the 18th March 1992 that the Hon. Achillea Ogar MP, then the Assistant Health Minister, made allegations, under cover of parliamentary privilege that there existed a “private army” of Kalenjins. Describing it as a very serious allegation the Deputy Speaker of the National Assembly called on Mr Ogar to either substantiate the allegations or withdraw the remark. He replied, “I withdraw my remark unconditionally”.
That might have been that, as they say. Achillea Ogar did not substantiate his accusation as far as The Forum is aware but it was taken up by other politicians, journalists and campaign organisations, and it appears by the Kiliku Committee that ‘looked’ for something to give credence to the allegations.
THE KILIKU COMMITTEE
The Parliamentary Select Committee to Investigate Ethnic Clashes in Western and other parts of Kenya in 1992, chaired by Hon. Joseph K Kiliku, was appointed on 13th May, 1992 by a resolution of the National Assembly passed on 29th April, 1992.
There’s not space enough and time in a single Forum posting to consider all that Kiliku came up with and how his Committee conducted its investigation but let us look at just a couple of examples arising from one case study, the allegations against Nicholas Biwott, by way of illustration.
KODIPO AND THE “SHINYALU WITNESS”
The Committee heard testimony that Nicholas Biwott, the MP for Keiyo South, had financed a group of “Kalenjin warriors” to cause tribal clashes and incited inter-tribal violence at rallies Kapkatet and Narok in Septembr 1991. The basis for the allegations rested on the testimony two people: Valentinus Ujure Kodipo, alias Abdul Kadir arap Kigen, and an unidentified ‘witness’ known as the “Shinyalu witness”.
Oddly, whereas the Kiliku Committee established sub-committees to consider other specific allegations, in the case of Kodipo’s and the “Shinyalu witness” allegations a sub-committee was not established and their testimony was accepted at face value and without challenge.
Kodipo’s evidence, which was not recorded verbatim, nor was it included in the Kiliku Report, was subsequently discredited when on 6th October 1992 the Hon. Terer, then the Assistant Minister for Tourism & Wildlife, produced an affidavit of one Samuel Tunoi who Kodipo had cited as his source, an affidavit that proved Kodipo had been lying. On the 29th September the Hon. Mrs Ndete MP, one of the members of the Kiliku Committee, stated, “…we did not believe those (Kodipo’s) allegations”.
Kodipo was also later to allege that Biwott was involved in the murder of the English tourist, Julie Ward, a claim also subsequently discredited by no lesser figure than Mr John Ward, Julie Ward’s father, a former British policeman who was heading an investigation into his daughter’s death.
In rejecting Kidipo’s allegations, Mr John Ward said, “ All along, I have never believed in the witness claimed by Kodipo despite the fact that both the United Nations and the majority of the Western Countries believed his claims, which they have also discovered were aimed at harvesting huge sums of money from them”. Further, Mr Ward said, “Kodipo’s motive for his claims could have been political mischief”.
THE “SHINYALU WITNESS”
The second ‘witness’ upon which the Kiliku Committee based the allegations that Biwott financed the “Kalenjin warriors” came from an unnamed witness described as a “warrior” from the Shinyalu division. The “Shinyalu witness” was later named as Wilson Kokosi Ingare.
The “Shinyalu witness” testified before the Kiliku Committee not that he had direct evidence against Biwott but that an unnamed and unidentified warrior gave him the information only after he had been “thoroughly beaten” and only spared when he conceded to disclose his identity and mission.
Realising that the testimony from the “Shinyalu witness” was baseless, Mr Kiliku was later to state before the Akiumu Commission that his report contained other evidence against Biwott, namely the report of a subcommittee that heard evidence at Kimilili on 11th June 1992. And what was the basis for this new evidence? It turned out that it came from the same Mr Wilson Kokoi Ingare, the “Shunyalu witness”, offering the same ‘evidence’ that had already been discredited. No other evidence was offered.
The Kiliku Committee’s report when put to a vote of the National House of Assembly was not adopted for being ‘shallow’, ‘inadequate’ and ‘malicious’ but the National Assembly’s comprehensive rejection of the Kiliku report and John Ward’s equally emphatic rejection of Kodipo’s allegations did not stop newspapers, campaign organisations, foreign governments, and now of course the KHRC, giving them credence.
AKIWUMI TRIES AGAIN
On 1st July, 1998 a presidential commission of inquiry, the ‘Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya’ under the Hon. Mr Justice A M Akiumi, was established. Known as the ‘Akiwumi Commission’ it was charged with determining the causes of ethnic violence from 1991 to 1998 and making specific recommendations, including identifying for prosecution those found to be responsible.
Taking testimony from over 200 witnesses over eleven months the Akiwumi Commission focused particularly on the 1997 outbreaks of violence in Coast Province.
Akiwumi presented his report to President Moi on the 19th August, 1999. Its contents however, were to remain secret until the report was finally published by the Attorney General on 18th October, 2002.
For three years Nicholas Biwott and many others were unaware that their names appeared in the Commission’s report. Only in October 2002 were they to learn that the Akiwumi Commission had recommended that 189 other people be investigated to ascertain whether he had played any part in the tribal clashes that occurred between 1991 and 1998.
The handling of the Akiwumi Commission’s investigation, however, and the recommendation it made call into question the validity of it inquiries and cast serious doubt as to it being an objective and independent commission.
ROUND UP THE USUAL SUSPECTS
The nature of the Akiwumi Commission’s recommendation regarding our case study, Nicholas Biwott, was in itself highly unorthodox and his case unique among those cited for investigation. It was subsequently also to be found to be unlawful.
The Commission only included Biwott’s name on a list of those that should be investigated in the Kericho District, not his home area or the one for which he sat as a Member of Parliament. More damningly, the relevant section of the Commission report addressing the disturbance in the Kericho District did not mention the name ‘Nicholas Biwott’.
In other instances of those recommended for further investigation the Akiwumi Commission established facts and findings against them. In Biwott’s case no facts were established and no findings recorded by the Commission and yet his name was included on the list for further investigation.
AKIWUMI: “WRONG IN LAW” AND “IN BREACH OF NATURAL JUSTICE”
Not only was the Commission’s recommendation regarding Biwott illogical and inexplicable given that he had not been found to have done anything wrong nor named in the Commission’s report, it also transpired that it was unlawful and deemed against natural justice by the Kenyan courts.
A ruling by Judge J. Rimita in the High Court of Kenya on 1st November 2002 (Case No. 1269), finding that, ‘there was no evidence against’ Nicholas Biwott and that, ‘this is supported by the Commission’s findings’, ordered that, ‘The Judicial Commission of Inquiry on tribal clashes in Kenya dated 31.7.1991 is ordered removed into this court and quashed as far is it recommends that the applicant be further investigated regarding his role in the tribal clashed that occurred in Kericho District’.
Judge J. Rawal in The High Court on 10th December, 2002, recorded, “I therefore hold that the recommendation made by the Commission to the effect that the applicant [Nicholas Biwott] be investigated for the tribal clashes in Kericho District was wrong in law, was made in breach of the rules of natural justice and hence is a nullity.”
In his deliberations Judge Rawal also noted that, ‘I can and should observe that the Commission has not uttered a single adverse note or comment against the applicant [Nicholas Biwott] in the relevant part concerning the clashes in Kericho district. Nothing can dissuade me to observe or surmise that there was nothing worth mentioning in the evidence before the Commission so far as the applicant was concerned and that is why the total silence in its finding. Yet out of the blue, in the recommendation, which is in the nature of its substantial decision, his name appears.’
So technically, it should be pointed out, Biwott’s name should not be in the Akiwumi report because it had been ‘removed’ by the High Court of Kenya. But that, of course, has not stopped the KHRC in effect re-inserting it for the purposes of their Lest We Forget report.
SELLING NEWSPAPERS AND SETTLING SCORES
Judge Rawal was not the only person to be puzzled as to why Biwott’s name appeared in the Commission’s recommendations when it had not appeared in its investigations into tribal clashes in the Kericho district. Others speculated that perhaps his name had been added just prior to the publication of the report. A newspaper editor under cross-examination by the Commission provided an alternative reason: “Biwott’s name sells newspapers”, he said.
So what do we have? Allegations accepted into two reports, on which a third, the KHRC’s Lest We Forget publication, based their conclusions, some of them derived from allegations made by totally discredited witnesses concerning unrecorded speeches and confessions made by a beaten-up informer. The allegations in turn were, in the case of the Akiwumi report, kept secret from those accused (so they could not defend themselves). And in our case study, the Biwott case, not being named in the relevant section of the report didn’t stop his name being added to the list for further investigation, nor have High Court decisions ordering that his name be removed stopped the KHRC from including it.
This may have sold newspapers and helped settle scores in the old Kenya but the Forum had hoped that in the new Kenya, with our new constitution, such behaviour was a thing of the past and no longer condoned, especially by groups such as the KHRC that have an important role to play in protecting our new-found rights and freedoms.
P.S. It is in a footnote on page 47 of its report that the KHRC refers to event that supposedly gave rise to many of the accusations of involvement with instigating tribal violence. It was allegedly at rallies at Kapkatet on the 21st September and Narok on 28th September 1991 that ‘KANU cabinet ministers, MPs and others’ incited violence in their speeches. Then, the footnote continues, ‘Finally, in early 1993, tribal clashes broke out in Enoosupukia which is in Maasiland, between the Maasai and the Kikuyu’. So is the KHRC really saying that speeches made in September 1991 instigated inter-tribal violence nearly one-and-a-half years later in 1993?