THE CHANGING FACES OF PUBLIC INQUIRY: TOWARDS A REGULATORY FRAMEWORK FOR TASK FORCES IN KENYA WAMBIRI ELIZABETH WANJIRU G62/11748/2018 A Research Project submitted to the University of Nairobi Law School in partial fulfilment of the requirements for the Master of Laws (LL.M) Degree Program. NOVEMBER 2019 i DECLARATION I, ELIZABETH WANJIRU WAMBIRI, do hereby declare that this is my original work and has not been submitted to any institution for the award of a diploma, degree or post-graduate qualification. Signature …………………… Date…………………………………………. ELIZABETH WANJIRU WAMBIRI G62/11748/2018 This project has been presented for examination with my authority as the University Supervisor. DR. NKATHA KABIRA Signature…………………….. Date…………………………………………… ii DEDICATION This work is dedicated to my parents Daniel Wambiri and GladwellWambiri for their continued support and whose immense dedication to educate us continues to inspire me. iii ACKNOWLEDGEMENTS I thank the Almighty God for the privilege, opportunity, strength and grace and grace to undertake my studies in a relatively short period of time. I have truly experienced His faithfulness. I am greatly indebted to my supervisor Dr. NkathaKabirawhose encouragement, meticulous guidance and intellectual counsel enabled me complete my project on time. This research would not have been possible without her guidance. Thank you for supporting me towards crystallizing my ideas into this project. My parents,Dr.Daniel Wambiri and Dr.GladwellWambiri, thank you forthe support and encouragement you have given me throughout my studies. My siblings, Kelvin Wambiri, NjokiWambiri and ObedWambiriI am truly grateful for the many times you picked me up from school and all forms of encouragement you provided. I cannot thank you enough. To my colleagues and fellow supervisees for the encouragement and invaluable criticism that went a long way in shaping this project. I wish all of you, God’s blessings. iv LIST OF CASES KENYAN CASES Augustine NjeruKathangu& 9 Others v TJRC and BethuelKiplagat [High Court Misc App No. 470 of 2009] Anthony OtiendeOtiende v Public Service Commission & 2 others [2016] eKLR Baby ‘A’ (Suing through the Mother E A) & another v Attorney General & 6 others [2014] eKLR Francis KariokoMuruatetu& another v Republic [2017] eKLR MoraaGesicho v Attorney General and TJRC [High Court (Kisii) Petition No. 1 of 2010] NjengaMwangi& Another v Truth, Justice And Reconciliation Commission & 4 Others [2013] e KLR Republic v Truth, Justice and Reconciliation Commission & another Ex-Parte Beth WambuiMugo [2016] eKLR Republic V Judicial Commission of Inquiry into the Goldenberg Affair & 2 others Ex-parte George Saitoti [2006] eKLR v INTERNATIONAL CASES Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (Communication No. 276/2003) vi LIST OF STATUTES Commissions of Inquiry Act Chapter 102 Laws of Kenya County Governments Act, No. 17 of 2012 Ethics and Anti-Corruption Commission Act, No. 22 of 2011 Forests Conservation and Management Act, No. 34 of 2016 Independent Policing Oversight Authority, No.35 of 2011 Kenya Law Reform Commission Act, No. 19 of 2013 National Accord and ReconciliationAct, No. 4 of 2008 National Police Service Act, No 11A of 2011 National Land Commission Act, No.5 of 2012 Public Audit Act, No. 34 of 2015 Truth Justice and ReconciliationCommissionAct, No. 6 of 2008 Water Act, No.43 of 2016 vii INTERNATIONAL TREATIES Charter of the United Nations 1945 UNTS 950 International Convention for Civil and Political Rights 1976 UNTS No. 14668 International Convention on Economic and Social Rights No.14531 Rome Statute of the International Criminal Court 1998 UNTS 2187 Statute of the International Court of Justice 1945 Universal Declaration of Human Rights 217 UNTS III viii LIST OF TABLES Table 1.1 Typology of task forces ……………………………………………………..pg. 124 ix LIST OF ABBREVIATIONS AfriCOG- African Centre for Open Governance AG- Attorney General CAJ- Commission on Administration of Justice COK- Constitution of Kenya CS- Cabinet Secretary CIs- Commissions of Inquiry DPP- Directorate of Public Prosecution DCI- Directorate of Criminal Investigation EACC- Ethics and Anti-Corruption Commission GOK- Government of Kenya ICC- International Criminal Court ICCPR- International Convention on Civil and Political Rights ICJ- International Court of Justice ICTJ- International Centre for Transitional Justice IPOA- Independent Policing Oversight Authority KNCHR- Kenya National Commission on Human Rights KNDR- Kenya National Dialogue and Reconciliation OAG & DOJ- Office of the Attorney General and Department of Justice ODM- Orange Democratic Movement x TORs- Terms of Reference PEV- Post-Election Violence PNU- Party of National Unity SAPs- Structural Adjustment Programmes TJRA- Truth Justice and Reconciliation Act TJRC- Truth Justice and Reconciliation Commission TRCs- Truth, Reconciliation Commissions xi ABSTRACT This project examines the changing faces of public inquiry in Kenya. It demonstrates the transformation of the models of public inquiry in Kenya through different legal and political regimes. This study makes three key arguments. The first argument is that Kenya has had a long history of establishing ad hoc commissions of inquiry to look into matters of public and national concern; nevertheless, in the post-2010 period the government shifted to the use of task forces and other mechanisms. The study argues that this is the case because the Constitution introduced significant structural changes and redesigned institutions that carry out functions incidental to public inquiry. The reconfiguration of these institutions has further diversified and strengthened the practice of public inquiry. Secondly, the study argues that the model of public inquiry employed resonates with the existing legal and political order. The impetus behind the various models of public inquiry is largely motivated by the regime in power and the legal order in place. Thirdly, the study argues that task forces in the Uhuru Kenyatta regime mirror commissions established during Jomo Kenyatta’s regime in that they focus on policy. The study illustrates this by employing a mixed methodological approach incorporating historical and doctrinal research methods. The study employs doctrinal research methodology in interpreting and analyzing legal concepts, principles, and guidelines using reasoning in order to deduct conclusions. The historical method aids in interrogating whether the history of Kenya within the public inquiry sphere has had any normative force in shaping the current trends. The existing literature fails to address the reduction in the use of commissions of inquiry and the increasing trend of employing task forces in carrying out public inquiry in the post-2010 dispensation. This project helps the reader understand the history of public inquiry in Kenya through various legal and political regimes. The study also intervenes in addressing the departure from the dominant use of CIs to employing task forces and other mechanism of public inquiry. The study reveals that in the post 2010 regime, the government has predominantly used task forces as a tool of public inquiry for legal and policy reform. The study also reveals that task forces as currently constituted are mandated to study legal problems and make recommendations on reforms as well as probe into issues of public concern. This study reveals that there are two main types of task forces; policy implementation task forces and investigative task forces. To strengthen the value of task forces, the study proposes legal and policy frameworks that govern the establishment and operation of task forces. It proposes a detailed criterion for setting up task forces, strict timelines and publication of the findings by the task forces. xii TABLE OF CONTENTS DECLARATION ...................................................................................................................................... ii DEDICATION ......................................................................................................................................... iii ACKNOWLEDGEMENTS ..................................................................................................................... iv LIST OF CASES ....................................................................................................................................... v LIST OF STATUTES ............................................................................................................................. vii INTERNATIONAL TREATIES .......................................................................................................... viii LIST OF TABLES ................................................................................................................................... ix LIST OF ABBREVIATIONS .................................................................................................................. x ABSTRACT ............................................................................................................................................ xii CHAPTER ONE: INTRODUCTION ..................................................................................................... 1 1.0 Introduction ........................................................................................................................... 1 1.1Historical Background...........................................................................................................