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Tale of strange calls, threats that killed TJRC report on land

COUNTIES
By Nzau Musau | September 15th 2018
President Uhuru Kenyatta, receives report from TJRC Chairman Bethuel Kiplagat on May 21, 2013.

A leaked draft, a friendly call from the Office of the President, a frenzy of backpedaling commissioners and a fist fight formed the basis for 2013 alteration of the land chapter of the Truth, Justice and Reconciliation Commission (TJRC) final report.

A new book by a former commissioner, Prof Ron Slye, lays bare the intrigues that preceded the production of the final report in May 2013, barely two months after President Uhuru Kenyatta was sworn in.

The bone of contention, Slye reveals in The Kenyan TJRC: An outsiders View From the Inside, was references made to the effect that Kenya’s First President Jomo Kenyatta grabbed land at the Coast during his days in power.

The book does not, however, directly link the younger Kenyatta to the scheme, but senior officials at the Office of the President. Slye admits in the book that the commission had in fact not made any findings with regard to Kenyatta’s land dealings.

“The government of Jomo Kenyatta’s son, Uhuru, used its powers to cajole, bribe, and threaten commissioners and senior staff of the TJRC to have this and other references to his father’s land grabbing removed from the report,” Slye says and adds with a firm resolution: “I know, as I was offered a bribe to do just that, and refused,” he says.

The report writing and compilation was laced with high octane politics. Slye says one of the commissioners – Margaret Shava – had expressed concerns about portions of the land chapter and submitted proposed changes.

When she inquired on the status of the changes, she was directed to her fellow commissioners who were overseeing the compilation of the report in Lake Elementaita. When she called commissioner Ahmed Farah who was in Elementaita, she was rebuffed.

“A colleague told me that commissioner Farah emphatically stated to others in the room that not a single comma shall be changed in the land chapter,” Slye writes.

Exhausted and tense

By late April, Shava had given up the bid because other than Farah, the other commissioners had given her changes a wide berth. However, strange calls started trooping in from the Office of the President, which turned the tide in her favour.

“Shortly after commissioner Farah had insisted to commissioner Shava in late April that not a single coma in the land chapter would be changed, he apparently received a phone call from Kimemia (Francis, former Secretary to the Cabinet). Immediately after that phone call, commissioner Farah returned to the report-writing meeting and started to demand changes to the land chapter,” he writes.

When Slye arrived back from the US on May 2, a day to the official lapse of the TJRC mandate, he says he found commissioners “exhausted and tense”. Kimemia wanted all references to Jomo Kenyatta and DP William Ruto removed, he claims.

Four days later on May 6, he went to the printer’s office to check the status of the production of the report. He says he found Commissioners Shava and Farah “standing over our staff and directing which parts of the report to remove concerning Kenyatta family”.

The following day, May 7, Kimemia called him.

“He first thanked me for agreeing to take out the table in the land chapter that listed the Kenyatta family, among others, as having obtained land illegally or irregularly,” Slye says.

Shava had proposed the removal of the list of 24 people, arguing it was selective but if it was to be retained, it had to be expanded. Slye had agreed. He says after a few niceties, Kimemia asked him to take a look at paragraph 257 of the land chapter, which according to him, had similar problems to the removed table.

The paragraph contained three sentences from the testimony from one witness who linked Kenyatta to land grabbing in Kwale.

“He then observed that while we all wanted the TJRC report and its recommendations to be implemented, it would be difficult for the President to implement a report that reflected badly on his family.

He also noted, at least three times during the conversation, that I should stop by his office in State House and say jambo,” Slye says.

He says he never passed by Kimemia’s office nor acquiesced to his demands. He says the following day, Kimemia called CEO Tom Chavangi Aziz and informed him that he (Slye) had agreed to the changes and together with Farah, Chavangi headed to the printers to make the changes.

“I called the printers and made it clear that I had not agreed to any changes in the report. The paragraph was left untouched,” he says.

At this time, commissioner Berhanu Dinka, an Ethiopian, was ailing of lung cancer and was in hospital. Slye says while he and the other non-Kenyan commissioner, Gertrude Chawatama, had been avoiding involving Dinka in the wrangles over the land chapter, they later realised the other side had approached him and secured his approval for the changes.

Also, two other Kenyan commissioners – Prof Tom Ojienda and Tecla Namachanja – made it clear that they were opposed to any changes in the chapter. On May 14, Slye and Chawatama decided to visit Dinka who told them he had been made to believe they had approved the changes as well. He immediately withdrew his support for the changes, bringing the commissioners opposed to the changes to five.

“As we were meeting with Ambassador Dinka, we received a call indicating that commissioner Farah was back at the printers demanding, as we were told, yelling that changes be made,” he writes. Just at the time, Slye writes, Namachanja called to say she was hiding after receiving numerous calls threatening her to fall in place. Worried, Slye also called the US embassy for advice on his personal security.

On the same day, Chavangi fired an email to commissioners demanding clarity on the fate of the changes given the confusion that obtained. Slye says within minutes of the CEO’s email, five commissioners – Slye, Ojienda, Chawatama, Dinka and Namchanja – declared in writing that they opposed the changes.

The other two – Shava and Farah – said they supported, with the former saying she would abide by decision of the majority. The latter sought a further meeting.

The following day, May 15 at the behest of Dinka, a  long time diplomat, the anti-changes group agreed to compromise a little so as not to “throw the baby out with the bathwater”.

They would agree to changes, which made it clear that the commission was merely repeating the testimony given against Kenyatta as part of their narrative truth process.

But before the compromise could be properly considered, on May 16, the dynamics began to shift.

Reconsidered his position

“First, commissioner Ojienda sent an email to all of us saying he had reconsidered his position, and he now supported making the changes to the land chapter demanded by the Office of the President,” Slye writes.

In a quick succession to this epic shift, Shava wrote an email to all commissioners asking for Commissioner Namachanja to state her position. Chairman Bethuel Kiplagat who had been banned from participating in land chapter discussions also weighed in to support the changes.

Later that day, Namachanja caved in and with her, the compromise deal. At the fall of dusk, all references to Kenyatta were removed and the three non-Kenyan commissioners were left to draft a dissenting opinion on the chapter.

But even that was not a smooth sailing. Slye says Ojienda led charge against the idea of a dissenting opinion but in the process made a “temporary mistake” of saying the commission’s mandate expired on May 3.

Immediately the three seized on that to say the changes passed were null and void. But it was too late as Chavangi was already at the printer expediting printing, essentially locking out any reversal of decision and the dissent.

Despite Dinka unhooking his blood pressure device to revise their joint dissent from hospital bed, it was locked out of the final report, which was handed to President Kenyatta a few days later. Dinka died a few months later.

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