Political Activist Dennis Matsanga with Kalenjin council of elders lawyer William Arusei engage outside Milimani law courts after filing an application seeking the council to be enjoined in a case in which Matsanga is seeking retired justice Philip Waki secret report in an envelope that was forwarded to ICC made public.
BY SAM ALFAN.
Kalenjin Council of Elders of Elders have moved to court seeking to be enjoinedin a suit seeking to court orders to have the contents of the Waki envelope made public.
The association by the name Myot Welfare Association through their lawyer William Arusei says they were not given an opportunity to tell their side of the story.
They say though adversely affected, the Kalenjin community either singly or collectively were never given an opportunity to record their evidence and give there of this story before the commission of inquiry into the post-election violence.
“We were never given an opportunity to record their evidence and give their of this story before the commission of inquiry into the post-election violence.” Argues the association.
The suit was filed by political Matsanga is seeking retired justice Philip Waki secret report in an envelope that was forwarded to ICC made public.
The political activist wants the government compelled to hand over a copy of the report to President Uhuru Kenyatta and publish the full report, which he says is crucial to an application he has filed at the International Criminal Court (ICC) seeking to disqualify the document from being adduced as evidence.
They claim the report of the commission of Inquiry into Post Electoral Violence directly and substantially affected the interests of the interested party membership as it denigrates belittles, defames and prejudges the Kalenjin as a community, individually or collectively and ascribes guilt to the past, present and future generations of the community.
They say the said Akiwumi report like its successor CIPEV made wide ranging allegations against the Kalenjin and Maasai communities.
The government however dismissed the said report as biased and prejudiced and was not objective.
“The report they say made far reaching, scanted and one sided investigations of generalized nature, generalized allegation and purported outcome allegations in violation of all rights of the individual or collective rights of the members of the Kalenjin community.” They claim.
The Kalenjin community did not challenge the assertions of Akiwumi as the government of Kenya determined that the 1999 report was biased and discriminatory of the Kalenjin and Maasai communities.
“Unless the flagrant allegations made against the Kalenjins in the CIPEV Report are challenged, the past, present and future progeny of the Kalenjin nation will suffer collectively and individually prejudice in Kenya and elsewhere in the world as a result of the pervasive and misleading narrative that the community is responsible for mass atrocities. Nothing could be further from the truth. Never again shall this or that community be condemned en masses for acts of commission or omission,” says the association.
They say CIPEV conducted its work through both public and private hearing in Nairobi, Naivasha, Nakuru, Eldoret Kisumu, Kisii and Mombasa and heard evidence from victims, senior public officers government agencies, civil societies and faith based organizations and never heard all individuals adversely mentioned during its inquiry,.
However, Appellate Court judge Philip Waki filed a preliminary objection to the application by activists David Matsanga and John Kimani to have the contents of the Waki envelope made public.
Waki instead wants the High Court to throw out the petition arguing that it is “bad in law,” and “the petitioners do not have a right to the
He argues that Matsanga for instance, is not a Kenyan citizen and “cannot therefore bring the
instant petition within the provisions of Article 35.”
He also argues that there is already a similar petition before the Mombasa High Court filed by Kepha Mwebi against him and others.
Even so, he continues to argue, he cannot be personally compelled as the Chairman of the Commission of Inquiry into the Post Election Violence of 2008 (CIPEV) to divulge the findings.
“No civil action or suit can lie against the first respondent (Waki) by virtue of Section 14 of the Commissions of Inquiries Act.”
The findings of which were presented to President Mwai Kibaki, he submitted, and were therefore now the property of the State.
CIPEV itself, he added, could not be sued as it was disbanded in 2008 as soon as its work
“The report by the commission was submitted on October 15, 2008 before the promulgation of the new Constitution 2010 which cannot apply retrospectively,” Waki submitted through lawyer
He also challenged the reasons given by the two for their application saying they had not provided proof of their submission that Matsanga had challenged the decision of the International Criminal Court (ICC) to adopt of the Waki report in the case facing Deputy President William Ruto and journalist Joshua arap Sang.
“The petitioners have not stated what rights or fundamental freedoms they seek to protect. It is
not enough for them to allege a purported application before the ICC without evidence when it is a matter of judicial record that neither of the petitioners is a party to the proceedings
Political analyst Daniel Matsanga never objected the application by the association saying the public must know the truth.
They want to be enjoined so as to tell their side of the story.