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Commission of inquiry into terror a bad idea

COMMENTARY
By - PRAVIN BOWRY | October 9th 2013

By PRAVIN BOWRY

President Uhuru’s right to appoint a Commission of Inquiry cannot be legally questioned but before it is set up there is need to rethink lest its setting up and findings become counter-productive.

The efficacy of setting up the Commission is also a moot point on various scores. To investigate criminality by acts or omissions requires investigative and forensic acumenship.

The matters of terrorism, state security and in-house security debacles are grave matters not fit for public glare.

The DPP is empowered to deal with the criminal aspects of the tragedy and there do exist state mechanisms to address other matters through well-established law enforcing agencies.

Under the carpet

All Kenyans strongly, and perhaps with good reason, believe that this proposal of setting up a commission to look into the Westgate disaster is an attempt to sweep the facts of the national tragedy under the carpet.

What is in store: a long and expensive televised drama, akin to the Goldenberg debacle, and nothing out of it, most likely the findings will not be made public and the recommendations will be destined for the archives.

For historical reasons it is important to mention that since independence there have been seventeen Commissions of Inquiry. Only one Commission, the Waki Commission on post-election violence has had a profound impact and the genesis of the ongoing ICC trials ironically can be attributed to the findings of a Commission.

The rest of the Commissions such as the Bosire Commission on Goldenberg, Akiwumi Commission on Tribal Clashes, Commission of Inquiry into the sale of the Grand Regency Hotel and the Commission of Inquiry into the Artur Brothers have been no more than political damage control exercises.

It would help the national cause this time round to give the whole concept of setting up a Commission a new complexion, hitherto untried in Kenya, in the interests of Kenyans and to get it right.

The Commission of necessity must be set up in accordance to the provisions of the Commission of Inquiry Act, (Cap 102) Laws of Kenya, an antiquated piece of legislation enacted in 1962.

The Act does little to ensure that after the Commission is set up and the inquiry is finalised, meaningful steps are taken to implement the recommendations of the Commissions.

Binding effect

In setting up the Commission one hopes that the President and his advisors- presumably  the Attorney General and the Director of Prosecutions — will set the terms of reference carefully, with the new Constitution in the background and hopefully its findings will have binding effect with no room for culprits to wriggle out of  adverse situations.

What is the point of billions of shillings being spent in time and effort, and thereafter the High Court exonerating individuals from all blameworthiness through the process of Judicial Review?

Injustice

Remember the late George Saitoti’s successful application to have his name removed from the Goldenberg report.

The HiÍgh Court ordered the removal from the report of all paragraphs that adversely referred to the late Saitoti on grounds that the report was plagued with errors that if left unchecked would result in a great injustice.

And former Minister Nicholas Biwott was also a beneficiary of the fountain of justice. In Biwott’s case Application against Commission of Inquiry into the Tribal clashes, the Court held that the recommendation made by the Commission that Biwott be investigated for the tribal clashes was wrong in law and was made in breach of rules of natural justice and was therefore null and void.

In England commissions of inquiry are nowadays finalised through the use of internet.

This is done by posting the documents on a website and thereafter the interested parties given an opportunity to respond.

Should we see statements of all witnesses & documents posted on the internet to break away from the conventional Kenyan tradition of calling witnesses who can take months in the docks by over thirty lawyers?

It is also hoped that interested parties will be given free legal representation in the style of ICC trial where victims have been given a voice.

What of the costs? These have been in the limelight recently. How much will be paid to the officers? Past commissions have cost tax payers billions of shillings.

The Ouko Commission is said to have cost about Kshs. 8million a day and the Goldenberg Commission over Shs. 10 million a day. Are such costs what Kenyan’s should brace themselves for?

Teeth

Ways to mitigate costs must be sought. To begin with those in Government employment such as judges and prosecutors should not be paid a salary or given allowances in addition to the salaries and allowances they already receive.

It falls on the shoulders of President Uhuru Kenyatta to make the Commission relevant, forward looking and factually meaningful and contrive that its findings have teeth to bite for the sake of posterity.

Our President Ironically is one of the few whose life has been changed through the process of commission of inquiry: if Waki Commission had not been set up, he would not in most likelihood be at the Hague.

The writer is a lawyer.

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