[allAfrica.com] Biwott Wins Battle Over Report On Ethnic Violence The Nation (Nairobi) NEWS December 11, 2002 Posted to the web December 10, 2002 By MAGUTA KIMEMIA Nairobi Cabinet minister Nicholas Biwott yesterday won his fight to have his name removed from the Akiwumi Report on tribal clashes. Two out of three High Court judges out of three ruled that the commission which produced the report had breached the rules of natural justice by failing to call Mr Biwott as a witness during its sittings. Mr Biwott had filed an application urging the court to quash the commission's recommendation that he be investigated for his alleged role in the tribal clashes that took place in Kericho in 1992 and 1997. The report had stated that although he was not directly linked to any organised roles in the clashes, he had attended rallies at which tribal animosity was whipped up by the speakers. It recommended that 85 other people should be investigated for their alleged role in the clashes which left at least 1,000 people dead, thousands homeless and property worth million of shillings destroyed. Mr Biiwott's plea was supported by Mr Justice David Rimita and Lady Justice Kalpana Rawal but dismissed by Commissioner of Assize Philip Ransley. It was the latest in a string of court victories for Mr Biwott. He has won Sh67.5 million in libel damages during the past two years from authors, publishers and bookshops. The Nairobi bookshop Text Book Centre agreed to pay him Sh7.5million in June this year for distributing a book by former US ambassador Smith Hempstone, called Rogue Ambassador, which contained allegations concerning Mr Biwott and the death of Kenyan foreign minister Dr Robert Ouko. In July 2000, two other bookshops, Bookpoint and Bookstop, were each ordered to pay him Sh5million each for distributing Dr Iain West's Casebook, which also contained allegations about Dr Ouko's death. Mr Biwott received Kenya's highest ever libel award - Sh30million - against its two authors, Dr West and the UK journalist Chester Stern for allegations in the book itself. And in March this year he was awarded Sh20 million from the publishers of People Daily over an article about the Turkwell Gorge hydro-electric dam. His latest victory follows publication of the report of the Judicial Commission of Inquiry into Tribal Clashes in Kenya, chaired by retired Appeal Court judge Akilano Akiwumi. Considering Mr Biwott's plea, Mr Justice Rimita strongly criticised the Akiwumi Commission saying its recommendation that Mr Biwott should be investigated was not based on facts. He said the commission had acted outside its mandate, which was to investigate and make recommendations based on facts. "The recommendation appears to have come out of the blue. Except that the commission was headed by eminent judges, I would be tempted to think the recommendation was a typing error," the judge said. He said Mr Biwott should have been called to give evidence to the commission and it was not enough that his lawyer appeared on his behalf. He noted that the Law Society of Kenya had asked the commission to summon Mr Biwott but that this was rejected. The LSK might have noticed a lapse of fairness in the proceedings, in that important witnesses were not given an opportunity to testify. The refusal to call Mr Biwott to testify and contradict, comment on or to deny evidence was "deliberate and not an oversight." Lady Justice Rawal said there was no evidence the commission gave notice to Mr Biwott to attend the proceedings. Also the report did not cite any evidence to connect the minister with the Kericho clashes. However, Commissioner Ransley said Mr Biwott's lawyer had appeared before the commission but he had not shown what was done or said. He had failed to prove that the rules of natural justice had been flouted and that the commission had been diverted from its mandate. He also said the suit was time-barred because it should have been filed within six months of the commission concluding its report. Earlier yesterday, argument centred on whether Mr Biwott was right to sue the Attorney General, who was named as respondent, or whether he should have sued the commission itself. The AG had released the report to the public on October 18, this year, following a court order issued by Commissioner of Assize Joyce Khaminwa. Both Mr Justice Rimita and Lady Rawal agreed the AG was the proper party to sue while deputy chief litigation counsel Valerie Onyango for the AG argued Mr Biwott should have sued the commission itself and its members. However, Mr Justice Rimita said since the commission had no authority to read its recommendations to the public, it was the AG who had to release the report after receiving it from the President. Commissioner Ransley agreed with Mrs Onyango's arguments that the AG was the wrong party to sue. Lawyer Desterio Oyatsi represented Mr Biwott. Mr Biwott and Cabinet colleague Julius Sunkuli were among top Government officials the report recommended should be investigated over the clashes. Although not directly linked to any organised roles in the clashes, they were cited as having attended the rallies at which tribal animosity was whipped up by the speakers. Others named in the report were ministers Maalim Mohammed and Yusuf Haji and former Internal Security PS Wilfred Kimalat. Former Cabinet ministers William ole Ntimama, Timothy Mibei, Burudi Nabwera were also named as were assistant ministers Christopher Lomada and Rashid Sajaad. Others were former MPs Karisa Maitha, Rashid Shakombo, Suleiman Kamolle, Willy Kamuren, Kasim Mwamzandi and Kimnai Soi. Top security chiefs, among them then the Commissioner of Police Duncan Wachira, former CID boss Noah arap Too and the head of Intelligence Wilson Boinet were also named, as were former Mombasa mayor Masoud Mwahima and Coast politician Omar Masumbuko. The commission recommended that any person who whipped up tribal sentiments should be charged with a criminal offence. The commission proposed that the Government issues title deeds to people allocated land and all those lacking documents to prove ownership. The move, the commission said, would minimise land disputes arguing that conflicts over land ownership were the main reasons behind the clashes. The commission was appointed by President Moi on July 1, 1998 to investigate the origin of the clashes which rocked the country before and after the 1992 and 1997 General Elections. The report was handed in to the President on July 31, 1999 but was only released in October, this year. When releasing it, Attorney General Amos Wako dismissed the report as biased and prejudiced   =============================================================================   Copyright © 2002 The Nation. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). =============================================================================