In Defence of Florence Simbiri-Jaoko

The Kenya National Commission on Human Rights, established by an Act of Parliament in 2002, was the result of the realisation that Kenya could not continue on the path to international rehabilitation and recognition if it did not address the core question of human rights abuses by the state as part of the reform process that was going to culminate in a peaceful transition from the KANU Era to the NARC administration of Mwai Kibaki. Its first chairman, Maina Kiai, brought a lot of energy to the Commission from his days in civil society championing human rights on behalf of the silent masses of Kenya. When his term ended, he did the unthinkable: he left quietly without positioning one of his acolytes to take over the institution's chairmanship. It is against this background that we must commiserate with Florence Simbiri-Jaoko, whose tenure at the helm of this institution has been plagued by internal intrigues and public allegations of impropriety.

When the 7 members of the Commission chose to force a vote of confidence against the Chairman, they ignored a core value of the Commission: the promotion of the rule of law. The Kenya National Commission on Human Rights Act provides the means by which the Chairman, or any other Commissioner, may be removed from office. A vote of confidence is not provided. The Commissioners may feel that the vote of confidence may place an onerous moral burden on the chairman and compel her to leave office in light of the feelings expressed by her colleagues.

The Commission has suffered several public relations setbacks in recent months, topped most recently by the resignation of the combative media-savvy Hassan Omar Hassan as the Vice-Chairman, partly in response to the actions of the Chairman herself. However, the Commission has not demonstrated that the former magistrate is incompetent or that she has taken a partisan approach to the management of the affairs of the Commission. Indeed, it may, I suspect, be her management style which has put her at odds with her colleagues who are now calling for her to resign. Mr. Kiai had spent several years in the Third Sector, where the bureaucratic structures of government are absent and he brought this sense of independence to the Commission during his tenure at the helm of the Commission. Ms. Simbiri-Jaoko was for many years a magistrate and she was steeped in the management policies of the Government of Kenya. It is only natural to expect that, even after the years she spent as a Commissioner, that she would be loath to abandon a management style that had served her well. Unless the rogue Commissioners can show that her chairmanship has had an adverse effect on the operations of the Commission or lowered the dignity of the Commission or brought it to disrepute, they do not have the right or the authority to call for her resignation.

Ms. Simbiri-Jaoko is correct that t would be unfair for her detractors to demand that she run the Commission the way Maina Kiai did. She is not Maina Kiai and she has not had the same experiences as he. Even if she did, it would be impossible for her to emulate him in every aspect of the management of the Commission. It is only natural that while following the broad footsteps that had been laid by Mr. Kiai, she would attempt to craft a management style all of her own. This is not a ground for the removal of the Chairman of the Commission. To remove the Chairman, the provisions of section 11 of the KNHCR Act shall apply and they state:

11. (1) The office of a person appointed as the chairperson or as a commissioner shall become vacant if the person -

(a) dies; or

(b) resigns from office by writing under his hand addressed to the President; or

(c) is convicted of an offence and sentenced to imprisonment for a term of three months or more without the option of a fine; or

(d) is unable to discharge the functions of his office by reason of physical or mental infirmity as certified by two registered medical practitioners; or

(e) is absent from three consecutive meetings of the Commission without good cause; or

(f) is declared bankrupt by a court of competent jurisdiction.

(2) The President shall notify the termination of the appointment of the chairperson or a commissioner under this section by notice in the Gazette.

(3) Without prejudice to subsection (1), the chairperson or a commissioner may be removed from office for misbehaviour or misconduct; or, if the commissioner is convicted of an offence involving moral turpitude but not sentenced to a term of imprisonment, but shall not be removed except in accordance with this section.

(4) Where the removal from office of the chairperson or a commissioner arises under subsection (3) -

(a) the Chief Justice shall, by notice in the Gazette, appoint a Tribunal which shall consist of a chairperson and two other members selected by the Chief Justice from among persons who hold or have held offices as judges of the High Court;

(b) the Tribunal shall inquire into the matter and report on the facts to the Chief Justice and recommend whether the chairperson or the commissioner ought to be removed from office and the Chief Justice shall communicate the recommendations of the Tribunal to the President.

(5) Where the question of removing the chairperson or a commissioner has been referred to a Tribunal under subsection (4), the President may suspend the chairperson or the commissioner from the Commission and the suspension may at any time be revoked by the President and shall in any case cease to have effect if the Tribunal recommends to the President that the chairperson or the commissioner, as the case may be, should not be removed.

The rules for the removal of the Chairman are clear. If the 7 Commissioners who voted against her in the vote of confidence are convinced that Ms. Simbiri-Jaoko is unfit to hold the office of Chairman, it is imperative that they live up to the core values of the Commission and invoke the provisions of section 11 of the Act. Any other action on their part would constitute an abandonment of the rule of law as the guiding principle in this situation and instead, they would be operating like a kangaroo court. They are interested parties in the question of whether Ms. Simbiri-Jaoko should continue to serve in her capacity as chairman. Therefore, they cannot be the judges in the matter and it is imperative that they call on the Chief Justice to convene a Tribunal to determine whether or not she can continue in office.

One of the promises we made to ourselves on August 4th was that matters to do with the management of our national institutions would be conducted under the rubric of the rule of law. Therefore, if the Commissioners wish to demonstrate their fidelity to this canon, one that is a core value of the Commission, they must abide by the stipulated statute and call for a Tribunal. In the alternative, they should accept that she will never be her predecessor and that it is time that they moved forward from Maina Kiai's halcyon tenure and find more constructive methods to make Ms. Simbiri-Jaoko the successful leader that they want her to be.