President Uhuru Kenyatta addressing the nation following the terror attack on innocent Kenyans at the Westgate Mall in Westlands. With the president are the Director of NSIS Director Gen. Gachangi and the cabinet secretary for interior Joseph Ole Lenku. Photo/FILE
In Summary
Uhuru fights to balance security and constitutional issues that might arise from the process before naming team
Kenyans to wait longer to know the truth of what led to the September 21 massacre
By ANDREW TEYIE
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Kenyans may have to wait longer to know the truth about the Westgate terror attack following delays in naming a promised commission of inquiry.
More than a month after the September 21 Nairobi shopping mall siege by Al-Shabaab terrorists, President Kenyatta appears to be facing a dilemma in unveiling a commission of inquiry to investigate security lapses that resulted in the attack that claimed at least 67 lives and left over 180 people injured.
Although Attorney-General Githu Muigai has argued that the president is waiting for parliamentary investigations, alongside internal processes within security agencies, to run the course, the Sunday Nation has established that Mr Kenyatta is trying to balance complex security and constitutional issues that might arise when he sets the inquiry into motion.
Speaking on France 24, the French international TV channel, Prof Muigai said the commission of inquiry would be set up “in the next month” after parliamentary investigations and forensic auditors complete their work.
“It will happen because we are committed to that. We weighed doing this immediately against waiting for all the forensic reports and all the other technical reports; we thought that we should allow these to go forward first,” said the AG.
He added: “There was a parliamentary inquiry, we thought it should wind up first, and there were criminal inquiries by the Kenya criminal investigations department and other friendly investigations agencies assisting us. We thought all these should go first and they should form part of the material we use in the commission of inquiry.”
President Kenyatta’s spokesman Manoah Esipisu said the Head of State did not specify the time frame within which he would name the commission. Mr Esipisu said the priority for the President was to have the forensic investigation at the ruined Westgate mall completed.
“Security related matters are complex and need time. The President did not state a time frame for the inquiry so there is no sense of delay. Our priority is to have forensics investigations at Westgate completed,” he said.
However, a long-serving top lawyer at the AG’s office in Sheria House, Nairobi, says there are fears that the Terms of Reference (ToRs) for the commission could publicly lay bare sensitive security matters to the public and expose Kenya’s weaknesses to the enemy, including terrorists.
“The overall ToR will be a comprehensive review of the security in the country. This will be to investigate how the terrorists came into the country; what the security lapses were, if any; security weaknesses that led to the attack and the Kenya Defence Forces (KDF) operation manuals at Westgate,” said the lawyer who has been involved in setting up similar commissions in the past.
According to the lawyer, President Kenyatta also seems to be grappling with security agencies that are at loggerheads, which are bent on fixing each other instead of addressing the lapses that could have led to the attack. According the lawyer, the president’s advisers also seem uncomfortable with state security matters being discussed in public.
Rivalry within top security agencies has intensified after President Kenyatta announced the move to form the commission last month in the aftermath of the attack.
The rivalry turned into a blame game after Kenya Defence Forces took over the operation from the GSU Recce squad— an elite police unit trained to handle extraordinary challenges, including hostage situations.
It is believed “friendly fire” between police and KDF that killed a commander of the Recce squad and subsequent withdrawal of the unit from the mall gave the terrorists time to regroup after they were pinned in Nakumatt Supermarket.
Technically, the Constitution mandates Inspector-General of Police David Kimaiyo to be in charge of the operation. However, when KDF took over, he seemed to have been left in limbo as Chief of Defence Julius Karangi seemed to have taken control. Mr Kimaiyo this week denied any conflict between the police and the military.
THERE ARE CONCERNS
A joint parliamentary committee of Defence and Foreign Relations and Administration and National Security headed by Mr Asman Kamama and Mr Ndung’u Gathenji is investigating the attack. However, there have been concerns that MPs may not have the capacity to investigate the matter.
Two weeks ago, National Intelligence Service (NIS) Director General Michael Gichangi told MPs that if they wanted to establish the truth they should call all security chiefs and grill them at the same time to avoid contradictions and blame game.
The NIS has been accused of having failed to detect the attack. This was, however, disputed by leaked intelligence reports that warned of an imminent terrorist attack.
According to the latest edition of the Indian Ocean newsletter, Mr Gichangi contemplated resigning after the attack. However, President Kenyatta prevailed upon him to stay on during a National Security Council meeting on October 15. The Sunday Nation could not independently verify these allegations.
According to the lawyer we spoke to, the 2010 Constitution complicates matters for President Kenyatta. Although the president sets the terms and names the chairman and commissioners, the reports and recommendations are tabled before Parliament.
“Unlike the past where the law allowed the president to do whatever he wanted with it (the report) — whether he wants to make public or just ‘sit’ on it — the new Constitution demands that the reports are tabled before the National Assembly. And given the sensitive nature of such a report, it would be a problem if it ended up on national television,” said the lawyer.
We also established that three weeks ago, the leader of Majority in the National Assembly, Mr Aden Duale, asked the President to allow the parliamentary process to run its course.
“He is said to have told the president that he should not form the commission of inquiry but instead allow Parliament to proceed with investigation. (Mr) Duale said that if the president names the commission, then he should work with the Deputy President William Ruto in picking the commissioners instead of relying on the security chiefs, who are interested parties,” says an impeccable source privy to the talks.
DISCOUNTED CLAIMS
Mr Ruto has for the last one month been travelling on and off to The Hague, where he is charged with crimes against humanity at the ICC. He has denied the claims.
Yesterday, Mr Duale discounted claims that he had a meeting with the President. However, he said he held crucial meetings with Speaker Justin Muturi and his colleagues in Parliament to discuss why lawmakers should be on the forefront of the investigation.
“From where I sit, Parliament is the right organ to investigate the attack. The commission of inquiry does not enjoy the independence Parliament enjoys,” says Duale.
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