By Washington Osiro
The late Chief Justice (CJ) of Kenya, Evans James Gicheru is in my view, best remembered for his role as the Chairman of the Judicial Commission of Inquiry set up by President Arap Moi to investigate the death of John Robert Ouko. Right up there with the man’s role in the Ouko inquiry would be his role in the furtive dusk-time swearing-in of President Mwai Kibaki on December 30, 2007 – arguably the trigger-event for the 2007/2008 post-election violence that engulfed the country thereafter. Finally, call it coincidental, but Mr. Gicheru was embroiled in yet another incident linked to the violence that followed his swearing-in of Kibaki – conflict-of-interest machinations involving Ambassador Bethuel Kiplagat, the Chairman of the Truth, Justice, and Reconciliation Commission (TJRC).
FULL DISCLOSURE: Though the late Minister for Foreign Affairs was a close family friend and mentor, I try to remain as objective and clear-headed as I can whenever I write about him.
Charles Hornsby (Kenya: A History Since Independence) writes that in the wake of John Troon’s investigation into the February 1990 assassination of Robert Ouko, “rather than arresting the suspects or publishing Troon’s report (detailing the Scotland Yard investigator’s investigations)…..Moi instead set up a second investigation – a judicial inquiry. For a year, Justice Evans Gicheru, Richard Kwach, and Akilano Akimuwi heard evidence in public…..The inquiry pieced together a fuller picture of the dead man’s last hours…..” (Pg. 474) The late CJ’s role in the Ouko Inquiry is covered more extensively in the David W. Cohen and E. S. Atieno Odhiambo collaboration on the murder titled The Risk of Knowledge: Investigations into the Death of the Hon. Minister John Robert Ouko in Kenya, 1990. Unfortunately, in sixteen (16) mentions in the 2004 release, not much is revealed about the former Court of Appeal Justice – who reportedly learned about his “elevation to the highest judicial position in the land when his daughter, who was studying in the United Kingdom, heard about it in the news and called her father (who was returning from an up-country judicial appointment)…..to congratulate him.” (Pg.281)
Equally unfortunate is how the Evans Gicheru-led inquiry ended.
It was summarily terminated by Daniel Moi and the only person tried for the murder, Jonah Anguka, “was acquitted after one thousand days of confinement and two trials.” (Pg. 3)
Another book, The Kenyan TJRC: An Outsider’s View from the Inside by Ronald C. Slye, Seattle University Professor of Law and one of the three international commissioners on Kenya’s TJRC, also lists CJ Gicheru on its index beginning with Page 9. Alluding to Gicheru, Slye introduces the CJ with the rather dark and ominous opening – that “the chief justice (Gicheru) who would later play a controversial role with respect to our (TJRC) Commission, administered the formal oath of office….” to the nine (9) Commissioners selected to listen to evidence about the circumstances and events leading up to what I call Kenya’s Period of Infamy, the 2007/2008 Post-Election Violence (PEV).
The “controversial role” CJ Gicheru played had to do with the conflict-of-interest that shrouded the chairman of yet another commission (TJRC) assembled to investigate yet another spate of gross misdeeds implicating the highest office and senior-most politicians in Kenya. In Chapter 3 titled The Elephant in the Room, the Seattle U law professor writes that the presence and actions of Ambassador Bethuel Kiplagat “…..divided the (TJRC) Commission, alienated important constituencies; hindered significantly, our ability to pursue our mandate; and resulted in our recommending that he be further investigated….” Commission Chair Kiplagat was “linked to three areas of gross violations of human rights….. assassinations, land, and massacre” – all areas the TJRC was set to investigate. When questioned about these allegations including his complicity in “the worst massacre in the history of Kenya,” the Wagalla Massacre, Amb. Kiplagat “adopted numerous, often contradictory, strategies to respond to these allegations.” (Pg.84)
Unconvinced by Kiplagat’s response, the commissioners wrote a letter to Mr. Gicheru urging him to “establish a tribunal” (Pg. 131) to investigate the allegations against him, i.e., Kiplagat. This request was the classic Sisyphean Task because “(M)any of the Kenyan commissioners had contact with people who were adversely mentioned (in the events being investigated)….including the chair Ambassador Kiplagat.” The former diplomat also “…..knew many of the people who were allegedly responsible for some of the violations” the TJRC was investigating. (Pg.190)
What followed the request to Mr. Gicheru was a series of claims, counterclaims, buck-passing, and effectively, obstructionism, the latter two by the chief justice himself that only served to “whitewash or slow down the process to make sure the commission did not robustly pursue its mandate”, i.e., shed light on events leading up the PEV 2007/2008 and hold those responsible for mayhem accountable. (Pg. 87)
As offered by Prof. Slye, it was “curious” that CJ Gicheru, “the head of one independent branch of government, the judiciary, (asked) for legal advice from the ‘principal legal advisor’ of another independent branch of government.” That the CJ (Gicheru) consulted the AG (Muigai) about conflict-of-interest fears involving the chair of a commission investigating matters (assassination, land, and massacre) potentially implicating his boss, his boss’s father, and family calls into question the late CJ’s independence and objectivity – given the allegations of “whitewashing” and “slow-walking” the TJRC’s mandate.
Slye continues that “(T)he additional fact that the chief justice appeared….unable to act (on Kiplagat’s impartiality) until the AG responded to the letter…..suggested that the CJ either felt he could not make a decision without the AG or that he, (Gicheru), effectively wanted the AG to make the decision” regarding how impartial Bethuel Kiplagat was – as chair of the TJRC.
Mr. Gicheru’s paralysis AFTER Amb. Kiplagat was seen and heard on TV prejudging the TJRC’s mandate by claiming that he found it “…..extremely difficult” to believe that a “government worth its salt…..massacres its own people” worried most commission members. That the late barrister presented “a series of backdated letters” (Pgs.152-155) to justify his delayed decision re Bethuel Kiplagat’s role in the TJRC should have not only triggered an investigation into the charges of falsification of data by the man, the lawyer should also have been sanctioned by the country’s bar association.
Finally, it bears pointing out that the three seminal events the late CJ’s imprimatur, directly or indirectly, all ended with additional questions about the man’s commitment and fealty to the rule of law his office symbolized.
From his stewardship of the commission investigating Robert Ouko’s death to his hurried swearing-in of Mwai Kibaki, and allegations that he/his office backdated official communique to impede a critical decision on investigations with far-reaching implications, the late CJ Evans James Gicheru record was at best a mixed bag.