Ambassador Bethuel Kiplagat is back at the helm of the Good Ship TJRC, his stormy relationship with its crew of Commissioners seemingly at an end (although there are grumblings below decks), just in time to sail it into port and deliver its precious cargo, a report to Parliament on injustices in Kenya between 1963 and 2008.

Following a one-and-a-half hour meeting with Commissioners yesterday, Justice Minister Eugene Wamalwa announced that Mr Kiplagat is to resume his position as Chairman of the Truth, Justice and Reconciliation Commission (TJRC) and that an “amicable solution” had been reached between Kiplagat and the Commissioners.

TJRC GETS THREE MONTH EXTENSION

The “solution” however, involves a three month extension to the Commission’s work. It had been due to deliver its report on May 3, 2012, but that now looks likely to take place in August. An extension of six months to the Commission’s tenure had already been granted last year in order for it to complete its work.

Appointed Chairman of the TJRC in August 2009, Kiplagat has been at odds with the other Commissioners, or they have been at odds with him, depending on how you look at it, just about ever since.

BETHIEL KIPLAGAT ‘STEPS ASIDE’

In November 2009 Kiplagat ‘stepped aside’ as chairman of the Commission to allow a tribunal time to look into allegations that he had any questions to answer over a land issue, the Wagalla massacre in 1984, and the murder of Kenya’s Foreign Minister Dr Robert Ouko in 1990 (when Kiplagat was Permanent Secretary at the Ministry of Foreign Affairs).

To cut a long story short, no evidence against Kiplagat (as far as the Kenya Forum is aware) was ever submitted and the tribunal’s term of office came to an end. Mr Kiplagat then attempted to return to his post as chairman but the other Commissioners wouldn’t have it.

In February and March of this year Kiplagat, in effect, won two High Court judgments ordering the TJRC to allow him to resume his duties. The Commissioners, however, did not comply. They threatened to appeal and called on Chief Justice Willy Mutunga to re-establish a tribunal to investigate Kiplagat. Neither action happened: no appeal and no new tribunal.

Now, however, with the intervention of the Justice Minister, a deal has been sorted out. So where does that leave us? It is a difficult question to answer but this is the Kenya Forum’s view.

THE CASE FOR KIPLAGAT

Bethuel Kiplagat was officially and properly (in the sense that due process was accorded to) appointed as Chairman of the TJRC in 2009. He is without doubt a man of considerable talent and without question a man of experience.

Aside from his immaculate use of English he is also pretty fluent in French and Spanish. He was Kenya’s ambassador to France and then the UK from 1978 to 1981. Between 1983 and 1991 he was the Permanent Secretary at the Ministry of Foreign Affairs. He mediated conflicts in the Horn of Africa, was chairman of the Concerned Citizens for Peace at the time of the post-election violence in 2008, and assisted Chief Mediator Kofi Annan. Prior to that he was named as one of the ‘eminent persons’ in 2006 that constituted the Africa Peer Review Panel, and later President Kibaki appointed him to chair a committee of ‘eminent Kenyans’ given the job of drawing up a roadmap for the enactment of the new Constitution.

THE CASE AGAINST KIPLAGAT

There’s more to Bethuel Kiplagat’s curriculum vitae, much more, but suffice to say he had all the right credentials to be appointed Chairman of the TJRC in compliance with the TJRC Act except, his critics argued, that if he had not been made chairman he would in all likelihood have been called to give testimony in respect of an allegation of “land grabbing”, the Wagalla massacre, and the murder of Dr Robert Ouko.

In this respect the Commissioners (or some of them) and other critics of Bethuel Kiplagat, were right, he could have been called to give testimony on these issues (although Kiplagat argues that two have them have already been settled as a result of previous court decisions).

The Kenya Forum does not have enough information, or knowledge of, the “land grabbing” allegation but we do with regards to the other two allegations.

There is now little or no doubt, given the release of documents and minutes of meetings from 1984, that Bethuel Kiplagat has no case to answer regarding the Wagalla massacre. He wasn’t there on the day and he wasn’t at a meeting that discussed actions that led to the killings.

On the Ouko murder, whilst, as Permanent Secretary in the Ministry of Foreign Affairs, Kiplagat undoubtedly has knowledge of actions taken after Dr Ouko’s death, there is not a shred of evidence that he was in any way involved in the crime itself.

STEERING A MIDDLE COURSE

Perhaps Bethuel Kiplagat should not have been made Chairman of the TJRC but he was. The Commissioners who objected to his chairmanship perhaps had a point but they have been ordered, twice, by the High Court of the Republic of Kenya, to allow him to return to work: they must not be in contempt of that lawful decision.

Both Kiplagat and the Commissioners should now get on with each other and get on with writing the report. Enough of rocking the boat.