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Incomplete investigations encouraging impunity, warns CJ

13 March 2015, 16:21 Samuel Kisika

Nairobi – Chief Justice Willy Mutunga has challenged various investigation agencies in the country to ensure probes into crime are completed and responsible perpetrators prosecuted to curb rising cases of impunity.

Investigation agencies are constitutionally independent to maintain law and order, and Mutunga said the Police, Director of Public Prosecutions, Ethics and Anti-Corruption Commission, Judiciary, CID among others should work jointly to end the widening impunity gap.

“If assassinations are not investigated and concluded, they encourage repetition and entrench a culture that normalizes political violence. Similarly, if corruption is not investigated and acted upon as we have realized in the Judiciary, it encourages a culture of impunity. This is an important parallel to draw,” said Mutunga.

The CJ particularly warned politicians against plotting assassinations against persons holding divergent opinions to theirs.

“There is no doubt that standing in the way of crude gluttony for power or resources is a high peril enterprise; but it is one that we must embrace to save this nation and our fledging constitution from collapse,” said Mutunga.

He added that assassinations thrive in a climate of fear where it is impossible to establish the truth or hold anybody to account.

He raised the concern that although the nation has set up the Truth, Justice and Reconciliation Commission (TJRC) to unfold the truth behind a series of untold mysterious deaths and disappearance of renown leaders in the country, the journey to the truth has been and remains circuitous and frustrating. 

An infuriated Mutunga said despite the formation of the TJRC after the 2007/8 post-election violence mandated to investigate and establish the perpetrators of the crisis, its report delivered to Parliament about two years ago has neither been looked into nor acted upon yet its demands are not taxing.     

He further said it is shameful for the country’s inability to implement the justice and reconciliatory TJRC reports for the President to apologize on committed inhumane acts and public memorials commemorating lives of the nation’s heroes such as Pio Gama Pinto, an assassinated freedom fighter.  

“The President should publicly apologize to the families of those assassinated, and to the nation for these assassinations and the failure of previous governments to investigate adequately such killings,” said Mutunga.

“All reports and materials of all previous investigations into these assassinations should be made available to the public through the National Archives,” he added.

The CJ apologized on behalf of the Judiciary for its past failure to protect constitutional rights affected citizens as recommended by the TJRC report and assured to ensure total protection of human rights through full implementation of the realized 2010 Constitution.

“We pledge to build our nation, reconstruct a state and society that promotes economic prosperity for all Kenyans. We pledge to subvert the vision of the elite that arrogantly responds to our clarion call aluta continua with the sheer arrogance of their own slogan of looting continues!," promised Mutunga.

He also pledged to fight unethical political activities such as ethnicity, clannism, racism, regionalism, religious differences; gender and generational divisions in an effort to build alternative issue based new politics in the country.

The CJ was speaking during the commemoration of 50 years since the assassination of Pio Gama Pinto in early 1960s.

However, 73-year-old Kisilu Mutua has sued the government for illegal 36 years detention and torture over the killing of Pinto.

Mutua claims the police arrested him on February 24, 1965 at 11pm while having drinks at a Nairobi bar with friends without being informed of the offence he had committed.

He said he was taken to Eastleigh Police Station where his testicles were squeezed and beaten on the toes with rungus, and later detained at Pangani Police Station where police allegedly brutalized him almost to death while forcing him to sign a confession before charging him with murder on July 5, 1965.

He maintains that the information used against him was out of an involuntary confession.

Mutua told the court that before his arrest, “He was a young, healthy Kenyan aged 22 years old trading in Nairobi as a handcart operator.”

He indicated in his suit papers that he was held at Kamiti Maximum Security and Naivasha Prisons for 36 years and was released on July 4, 2001 following orders of retired President Daniel arap Moi.

Mutua says his release was compelled by his lawyers’ pressure on Moi because the detainee’s family members felt his imprisonment was unfair.

After his release, Mutua reveals that Moi directed that he be given a piece of land at Yatta Plateau but this was never implemented.

The aggrieved Mutua laments that he lost all his relatives and continues to live with the stigma of being a prisoner as a result of rejection by the community.

“This has made me hide my true identity to most people,” he lamented.

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