Clearly, there is an appetite for accountability for the riotous scenes at the Bomas of Kenya that almost torpedoed the announcement of the presidential election results on the 15th of August last year.
In his first major interview session with the Kenyan press, President William Ruto acknowledged the need for a truth telling about what happened. Coming from the Kenya Kwanza side of Kenyan politics are mutterings of victor’s justice. Left to their own devices, they will not conduct an objective inquiry. On the other side of the equation, while Azimio La Umoja’s Raila Odinga has voiced qualified support for an investigation of the incidents at Bomas of Kenya. Odinga’s target is outgoing Independent Electoral Commission (IEBC) Chairman Wafula Chebukati, whom Odinga wants “charged at The Hague for crimes against humanity”, even as he obliquely defends his party’s interactions with the IEBC commissioners on and immediately after the 15th. He has never commented on the National Security Advisory Council (NSAC) incident.
So, what accountability forum is appropriate in our circumstances?
There is of course the Justice Aggrey Muchelule Tribunal appointed to hear petitions for the removal as per Article 251 of the Constitution of the four dissenting Commissioners of the IEBC. But it was ab initio hamstrung by the resignation of three of the impugned commissioners. Only one IEBC commissioner, Irene Masit, is charged before the tribunal, and the hearings are now limited in scope to her personal alleged misconduct in office and nothing else. So this forum cannot ventilate all the issues of interference in the election announcements which is the gravamen of the allegations documented in affidavits sworn by Wafula Chebukati and Abdi Guliye.
Last September, the Supreme Court dodged this bullet during the presidential election petition saying it had no jurisdiction to make findings of criminal conduct by the IEBC, and the riotous political agents who stormed the National Tallying Centre.
A leading opposition MP John Mbadi has proposed a parliamentary inquiry through a select committee of the National Assembly. This is the form that the investigation into the murder of J.M. Kariuki in 1975 took. It was effective in revealing high level executive involvement in the assassination but caved in to President Jomo Kenyatta’s demands that it excise the names of some conspirators. Kenya was a one-party autocracy back then; today there is a powerful status quo readily able to scuttle any parliamentary investigation using votes on the floor of the House. It is reasonable to expect that a parliamentary enquiry will descend into the type of partisan recrimination seen during the select committee investigation that has just been completed in the United States following the January 6th 2021, storming of the US Capitol at the instigation of then-President Donald Trump.
Ruling party MP Nelson Koech favours a Commission of Inquiry to end the stasis around the election announcement debacle. Sometimes called a judicial commission of inquiry, because in the Commonwealth they are often chaired by Judges, the inquiry takes the form of a comprehensive trial rendering judgment on “the conduct of any public officer or the conduct or management of any public body, or into any matter into which an inquiry would, in the opinion of the President, be in the public interest.” Because the law gives the President the sole power to appoint, this method is suspected by many as a clever device by which hot issues are kicked into touch for a while, allowing the powers that be to catch their breath and regroup. This is the refrain one hears about such commissions as the Goldenberg Commission appointed by President Kibaki and the Akiwumi Commission appointed by President Moi before it.
There is some truth to this view, particularly if one commences this exercise in truth-seeking looking for indictments. But if one is looking for truth telling and documentation of official acts, they are invaluable as object lessons for the future in what we should or should not do. If you recall, although the Waki Commission of Inquiry into the post-election violence produced a list of suspects who were not tried to conviction, their narrow escape is clearly an experience that has moderated the behaviour of the political class.
By way of another example, no one will claim that the Goldenberg Commission of Inquiry resulted in the incarceration of key suspects, or even in the disgorging from them of the large amounts of money they had stolen. But the list of shame, published in the final report lives in historical infamy and is even today a tool to control the return to high public office of the culprits in that 108 billion shilling scam. The same applies to the Ndungu Commission of Inquiry into irregular acquisition of land (land-grabbing) whose lists circulate to this day to the embarrassment and agony of the guilty.
Commissions of Inquiry can lead to legislative reform, and even the establishment of institutions. The Kriegler Commission Report recommended the establishment of the IEBC and a whole raft of electoral process and legal changes that we are yet to wholly accomplish.
Were it not for the Akiwumi Commission of Inquiry into tribal clashes, and its non-implementation, there would have been less urgency in the establishment of the Kenya National Commission on Human Rights. Without this key institution the Waki Commission on post-election violence would not have reported as completely as it did about the mass killing (in 2 months) of 1,300 Kenyans, 480 of them at the hands of the police. In spite of last-minute deletion, by the usual suspects, of 5 paragraphs in the chapter on land grabbing The Truth, Justice and Reconciliation Commission of Kenya did document decades of human rights abuses and grand corruption, listing the perpetrators for all time.
For the sake of argument, what happened on 15th August 2022 was an assault on all our rights by an arrogant and dangerous group who decided they would rather overturn our Constitution than accept the people’s verdict. They placed themselves in the shoes of Henry Kissinger who justified the instigation of the 1973 coup d’état against Chilean President Salvador Allende thus; “I don’t see why we need to stand by and watch a country go communist because of the irresponsibility of its own people.”
Let them face the Judges.