By Isaiah Lucheli
Nairobi, Kenya: The High Court will Monday decide whether to grant orders seeking to block the tabling of the Truth Justice and Reconciliation Commission (TJRC) report in Parliament.
In a petition, two individuals have also asked the court to issue interim orders prohibiting the Attorney General from operationalising the implementation of the TJRC recommendations.
The petitioners, Njenga Mwangi and James Mwangi Meru, submit that TJRC violated the Constitution as the report was delivered to the President after the stipulated time and that the recommendations violated fundamental freedoms in the Bill of Rights.
Through lawyer Kioko Kilukumi, they argued that the commission made unconstitutional recommendations which violated the Constitution. This, they said, included calling on the President to, within six months of the release of the report, offer a public apology for all the injustices and violation of human rights.
“An apology is a moral issue not a legal matter. You cannot compel someone to apologise over an issue. Recommendations by TJRC make apology mandatory. Apology is unknown in law as a sanction for criminally culpable,” Kilukumi submitted. The report further recommends that the police, Kenya Defence Forces and the National Intelligence Service also apologises alongside the President for acts of extra-judicial killings, arbitrary and prolonged detention, torture and sexual violence.
The lawyer told Justice Isaac Lenaola that the court should issue orders stopping the tabling of the report as it was only remaining three days before the lapse of the period which the report should be handed to Parliament.
“The recommendation calling on the President, head of the Judiciary, defence forces, NIS and police to tender unconditional public apology threatens the fundamental rights to freedom of conscience under Article 32 (1) of the constitution,” they argued in the petition.
They have named TJRC, AG, the Speaker and clerk of the National Assembly and leader of majority in Parliament as respondents.
Mwangi and Meru argued that TJRC had not found any wrongdoing or personal responsibilities in the ills committed on the part of the President and the other senior government officials it wanted to apologise, to warrant such an action.
The petitioners aver that an apology by its very nature was moral and can only spring from inner self-examination and acknowledgement of wrongdoing and can be issued without any compulsion.
They argued that TJRC had established that the crimes were committed by identifiable individuals and added that there was a mechanism for detection, prevention, prosecution and punishment for those who are criminally culpable.
The duo argued that the recommendation by the commission to the Director of Public Prosecution (DPP) to prosecute named individuals amounted to directing or controlling the DPP in the exercise of his prosecutorial powers thus contravening the Constitution.
The petitioners submitted that the right to be heard is a basic and fundamental principal and accused TJRC of failing to give audience to the President and other top government officials named in the report.
Lenaola will give directions on Monday.