I, Andrew Okiya Omtatah Okoiti of P.O. Box 60286 - 00200 Nairobi, ID Number..................... and a Kenyan citizen and a resident of Nairobi within the Republic of Kenya, do hereby make oath and state as follows;

1. THAT I am an adult male of sound mind and thus competent and fit to depose to and swear this affidavit.

 
2.      THAT the Truth Justice and Reconciliation Commission was established under an Act of Parliament for purposes including but not limited to promote peace, justice, national unity, healing and reconciliation among the people of Kenya.
 
3.      THAT since the establishment of the Commission and the appointment of Commissioners, the Commission has not yet completed drafting and adoption of its rules of procedure for approaching it and ventilating any claim before it.
 
4.      THAT in the circumstances and in light of the above alluded to facts; I swear this affidavit to set out my claim that I desire the Commission to address before it sets out to conduct public hearings in pursuit of part of its mandate.
 
5.      THAT the Commission by law, is expected to inquire into and investigate several past injustices including the occurrence of gross human rights violations, violations of international human rights law and abuse such as, massacres, sexual violations, murder and extra judicial killings and determining those responsible for the Commission of the violations and abuse as set out in the Section 5 of the Truth Justice and Reconciliation Act.
 
6.      THAT it is my averment that the commission should consider and determine certain atrocities that some of its members might have engaged in before it sets out to conduct public hearings.
 
7.      THAT Amb. Bethwell Kiplagat was mentioned in the Troon Investigation Report that investigated the disappearance and death of the late Dr. Robert Ouko who was a Minister in charge of Foreign Affairs. The Troon Report recommended that the said Amb. Kiplagat be subjected to further investigations for his role in the criminal enterprise leading to the death of the Late Hon. Dr. Robert Ouko.
 
8.      THAT Amb. Bethwell Kiplagat was a key witness in the Judicial Commission of Inquiry into the disappearance of Dr. Robert Ouko led by current Chief Justice Evans Gicheru in 1990 and to the Parliamentary Select Committee Investigating Circumstances Leading to the Death of the Late Hon. Dr. Robert John Ouko led by Hon. Gor Sungu in 2003.  
 
9.      THAT the Commission of Inquiry into the Illegal and Irregular Allocation of Public land popularly known as the Ndungu Land Commission, in its report recommended that the said Amb. Bethwell Kiplagat be further investigated for  illegally acquiring  public land  in the areas of Kileleshwa estates, Lavington estates and Uasin Gishu District whose reference can be found in the Report of thr Commission of Inquiry into the Illegal/Irregular Allocation of Public Land, Annexes Volume I. (Commonly referred to as the “Ndungu Land Report”)
 
10.  THAT upon discharge of the Commission’s mandate the said Amb. Bethwell Kiplagat might be implicated, associated or linked in human rights violations against the Degodia community of the Somali tribe in Wagalla, Wajir District that were committed in the month of February 1984 during his tenure as Permanent Secretary in the Ministry of Foreign Affairs. It has been alleged that Amb. Bethwell Kiplagat was party to a meeting of the Wajir District Security Committee, which meeting was the precursor to the Wagalla massacre. Unofficial documentation of the Wagalla massacre such as the Blood on the Runway by S. Abdi Sheikh is supportive of this allegation. A ministerial statement by the Late Julius Ole Tipis, Minster of State-Office of the President, on the 12th of April, 1984 confirms the existence of the Committee that oversaw the mounting of security operations in Wajir district in the month of February 1984. (Annexed herein and marked “AOOO 1” is a Hansard report containing the ministerial statement read to the Kenya National Assembly by the Late Hon. Julius Ole Tipis on the 12th April 1984).
 
11.  THAT due to the above mentioned issues the truth, justice, and reconciliation process has attracted a lot of negative publicity and reduced public support with various victims now losing hope of ever receiving redress for past injustices committed against the people of the great Republic of Kenya.
 
12.  THAT the said Amb. Kiplagat is the chairman of the Truth Justice and Reconciliation Commission and his past conduct forms part of the matters to be investigated by the Commission as set out in the Section 5 of the Act.
 
13.  THAT I know for a fact that to meet part of its mandate, the Commission will resort to holding public hearings where it shall receive information from the public about the matters that are subject of the TJRC process and on these very investigations and inquiries that Amb. Kiplagat was a witness.
 
14.  THAT upon the conclusion of the said public hearings, the Commission in fulfilment of its mandate will write a report which shall contain inter alia recommendations on parties to be subjected to further investigations, prosecutions for criminal atrocities, from whom illegally acquired public assets will be recovered, those who should be granted amnesty and also those against whom no wrong had been proved.
 
15.  THAT I am apprehensive that should the Commission opt not to consider the matters raised herein about the said Amb. Kiplagat, and he continues participating in the activities of the Commission, there shall be a real likelihood that the report thereafter prepared by the Commission shall lack credibility due to genuine perceptions of bias arising therefrom.
 
16.  THAT should the Commission fail to address the issues raised herein, that their is a real threat of the Commission being disbanded due to the fact that the Commission has not been able to commence its work due to the credibility deficit faced by the Commission.
 
17.  THAT it would be an affront to the credibility, integrity, and independence of the Commission if it fails to render itself on the aforementioned matters before it sets out on its public hearings.
 
18.  THAT it is a principle of natural justice that one should not be a party in his own cause and as such it would be a serious affront to this principle if the Commission proceeds to hold public hearings before addressing the matters averred to herein which touch on the very credibility, competence, and fitness of its chairman as head of the Commission.
 
19.  THAT based on the above mentioned averments, and in light of the mandate of the Commission as set out in the Section 5(c) of the Truth Justice and Reconciliation Act, it is my prayer that the Commission proceed to hear my application and render itself on the culpability or otherwise of the said Amb. Bethwell Kiplagat and make its recommendations on his role in the said transactions expeditiously before resorting to the public hearings.
 
20.  THAT based on these averments and the power granted to the Commission by the Truth Justice and Reconciliation Act (Cap 6 of 2008) and relying on the advised of learned counsel, George Kegoro, whose information I verily believe, I hereby request the Commission to grant in the first instance, an opportunity to make submissions before the Commission and the public on the grave issues raised hereinabove;
 
21.  THAT based on these averments and the power granted to the Commission by the Truth Justice and Reconciliation Act (Cap 6 of 2008) and relying on the advised of learned counsel, George Kegoro, whose information I verily believe, I hereby request the Commission to investigate and make recommendations against Amb. Bethwell Kiplagat as per Section 6 (f) and Section 6 (k) (ii) of the Act which empowers the Commission to
a.       identify any persons who should be prosecuted for being responsible or  involved in human rights and economic rights violations and abuses; and
b.      make recommendations with regard to prosecution of persons responsible for or involved in human rights and economic rights violations and abuses
 
22.  THAT what is stated herein above is true to the best of my knowledge information and belief save for matters deposed to on information sources whereof are wholly disclosed.
 
SWORN at Nairobi by the said                                                            )
ANDREW OKIYA OMTATAH OKOITI                                       ) ……………………
At Nairobi this ……….. day of ………………2010                           )    DEPONENT
                                                                                                            )
BEFORE ME                                                                                       )
                                                                                                            )
COMMISSIONER FOR OATHS
 
Drawn & filed by:
George Kegoro
Advocate,
International Commission of Jurists (Kenya)
Vihiga Road off Makueni Road
P. O. Box 59743-00200
NAIROBI