Ahmednasir Abdullahi is wrong

I must respectfully disagree with my senior, Ahmednasir Abdullahi regarding the question of Florence Simbiri-Jaoko's decision not to resign as chairman of the Kenya National Commission on Human Rights (KNHCR). In today's Sunday Nation (Jaoko must accept Rights team decision), Mr. Abdullahi makes the case that because Ms. Simbiri-Jaoko was elected by the members of the Commission, she must accept the decision of the vote of confidence against her by the same Commissioners and resign her position as the chairman. His argument is that because her election was an internal matter, her removal by the Commissioners was also an internal matter and that she did not have a legal argument against the internal decision of Commissioners who elected her to the chairmanship. I find this line of argument unfortunate, for it negates what is a basic principle of law, that is, no man shall stand judge in his own cause. I am glad that this is a position taken by my other senior, Donald B. Kipkorir in today's Sunday Standard ( KNHCR commissioners have demonstrated contempt in bid to remove Jaoko from office).

In making his case that Ms. Simbiri-Jaoko should resign, Mr. Abdullahi alludes to "internal wrangles, a crippling credibility crisis, saddled with uninspiring leadership and defined by woeful underperformance". What Mr. Abdullahi has failed to do, just as the Commissioners have, is to articulate the grounds for which Ms. Simbiri-Jaoko deserves to step down. The vagueness surrounding the allegations made against her tend to suggest that the KNHCR has fallen prey to the internal bickering and politics that have bedeviled other national institutions. The speculation regarding the reasons behind the coup d'etat against the chairman suggests that even this important institution is yet to internalise the principle of the rule of law when it comes to its "internal affairs". This is the same argument that repressive regimes like the People's Republic of China, the Democratic People's Republic of Korea, and the Islamic Republic of Iran have used to avoid the attention of international interlocutors like the United Nations or the attentions of world powers like the United States. Is the KNHCR a law unto itself that it cannot abide by the provisions of the law under which it was established?

The KNHCR is funded by tax-payers' monies. It is not a private organisation. If there are going to be changes in its leadership, the people of Kenya have the right, and indeed the duty, to be involved in these decisions. Long gone are the days when government departments, agencies and institutions could operate behind a veil of secrecy without being accountable to the people of Kenya. If the 7 Commissioners are persuaded that the chairman has been derelict in her duty to the people of Kenya, then it behoves them to state their case and let the chips fall where they may. If they managed to push out the chairman without a public reckoning of their decision, would they sit idly by as she was appointed or nominated to another public institution? The Constitution places an onerous obligation on all of us to take public responsibility for the task of defending and upholding its principles, including that of the rule of law.

Despite the fact that the chairman is elected from among the members of the Commission, the law is clear on the process or her removal. This is a mandatory provision and it does not envisage that the Commissioners can suo moto take another vote to remove the chairman. As one of the guiding principles of the Commission, the rule of law must be applied as strictly as possible. We cannot allow what appear to be personal vendettas to be used as a basis for the removal of the chairman without the law being applied as it was meant to be applied. The internal affairs of the Commission have a direct impact on the people of Kenya and these cannot be used as a fig leaf to cover the illegality that the 7 Commissioners are attempting to foist on the people of Kenya. Someone must point out that the emperor has no clothes.

To contextualise the role that the provisions of section 11 of the Act play in the removal of the chairman as Mr. Abdullahi asks us to do, he must cast his gaze wider than the "internal democracy" of the KNHCR and see that when Kenyans overwhelmingly ratified the new Constitution, they were also making a clean break with a past that was characterised by lies, secrecy and personal vendettas. The national values enumerated in article 10 of the Constitution include the rule of law, democracy and the participation of the people, good governance, transparency, and accountability. The 7 Commissioners have indeed shown contempt for thee principles. It is imperative that we do not allow them to get away with it. Anything less, and we are better off inviting President Moi to resume his iron-grip on the affairs of this nation. We owe it to ourselves to remind the Commissioners that the day we ratified the Constitution is the day we stopped being bystanders in the internal affairs of our nation institutions and instead became active participants in their processes and actions.