Report of Judicial Commission Appointed to Inquire into Allegations Involving Charles Mugane ...

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REPORT OF JUDICIAL CO]IIMISSION
APPOINTED TO
IilEU IRE INTO ALLEGATIONS INYOTYIJIG
CHARTES MUGANE }IJO}IJO
(FORMER lrllltISTER FOR COIISTITUTIOI{AL AFFAIRS AllD
]iET,IBER OF PARIIAI'IEI{T FOR KIKUYU COIISTITUEIICY)
CHAlRl,lAll:
,
HOJ{. MR. JUSTICE C. H. E. MILLER, E.B.s.
PRESENTED TO
HIS EXCETLE]ICY THE PRESIDE}IT OF THE REPUBLIC OF KE]'YA
HON. DAillEt T. ARAP MOI, c.c.H., M.p.
grH
THIS DAY OF NOYEMBER, tg84
1 :.":- 't, tirr-.n
KENYA tiATl0r;.\:. A)'icilM:i
GENTRAL GOVI RNMEilT Li:INAR1
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TABLE OF CONIEX\TS .
Parqrqh Pqe
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LETTER OF TRANSMITTAL
A,CKNOWLEDGEMENTS (v)
INTRODUCTION I-13 (viiHix)
PART I: EVIDENCE-OUR APPROACH t+19 t-2
PART II: CHARLES MUGANE NJONJO-SLJBIECT OF
THE INQUIRY 20-2t
Itr:
PART TERM OF REFERENCE (a)
2t4
Outline of Components 5
2543
Security ofState.. 5-13
The Position of the Head of State, The Image of the
President and the Constitutiona[y Established Govern-
64-150 B-n
ment of the Republic of Kenya
Conspiracy or conspiracies to overtlrow, by unlawful
means, the Government of the Republic of Kenya
t5l-173
during August, 1982 or the concealment thereof n-31
t7+194
The Unlawful Activities of Andrew |ytungai Muthemba 31-38
195-216
Concealment 3843
Rungri Presbyterian Church of East Africa Prayer
Meeting
217-218 49F44
PART IV: TERM OF REFERENCE (,)
Oufline of Components 219 45
Kenya's National Interest and Policy of Maintaining
Good Neighbourliness .. 22G226 4s4
Kenya's National Interest and Policy of Opposing
M9
The Inhuman Regime of South Africa 2n-237
Conspiracy or conspiracies to overthroU by unlawful
mqarut, tIIe Government of the Republic of Seychelles
during November, 1981 238-251 49-50
PART V: TBRM OF REFERENCE (c)
252
Oufline of Components 5l
253
Arrogation of Powers 5l
zsLvt3
Cornrpt Payments 5t-57
27+3Vt
Granting of Favours 5742
Acting to the Prejudice of Individuals. . 308-352 6?fi8
PART VI: TERM OF REFERENCts (d)
3s3-354
Outline of Components 69
Kikuyu C-onstituency Development Fund 355-365 6y7t
Association for the Physicalty Disabled of Kenya Fund 36G384 7t:t3
The Bohras ofKenya 385-394 73-74
Obtaining Foreign Exchange for Purchaso Overseas of
Mercedcs Benz Motor Vehicle Registration No.
KVD 710 3g5-.39g 7+7s
Njonjo and his Passports 'l0O-413 75-76
(i)
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TABLB OF CONItsNTS-Cozr4
Parograph
Page
PART YII: SUMMARYOFFINDINGSANDCONCLUSIONS 77-81
APPENDD('A': Rules and Procedure 83-84 ,
APPENDIX'B': GazntteNoticeNo. 4O52 85
APPBNDD('C': Witness Summons to Njonjo 87
APPBNDD('D': Attorney-General's Opening Address .. s9-90
APPENDD('E : Chairman's Closing Address .r 9l-92
APPENDD('F : List of Witnesses. 93-95
(ii)
'l:rl:;r.[FF '' -l--
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Juorqlr, Coumssrox oF INetrRY
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Or,p CrHunBn
Pmruumn Btnr,omcs
P.O. Box 42362
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NlrnosI
9rn Novutr,msR, 1984
His Excellency the President,
Hon. Daniel T. arap Moi, C.G.H., M.P.,
State flouse,
'
Nairobi.
Your Excellency,
You appointed us Commissioners by Gazette Notice No. 2749 of 26th July,
1983 to inquire into the conduct of Charles Mugane Njonjo, former Minister
for Constitutional Affairs.
We would like to state that we felt honoured to be so appointed.
We have completed our task and now humbly submit our Report in
accordance with the provisions of Section 7(l) of the Commissions of Inquiry
Act (Cap. 102), and as directed in Gazette Notice No, 4051 which also set
otit'the Terms of Reference.
We remain,
Yonrr Excellency's Most Obedient Servants,
C. H, E. MILLER,
Chainnan.
C. B. IVIADAN,
Contmisstoner.
o*ol,*lli,l;*,,.
''.
JARED BENSON KANGWANA,
BENJAMIN PATRICI( KUBO,
loint Secretafies.
(iii)

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We would like to thank the dttorneyGeneral, Hon. Justice Matthew Guy
Muli, M.P. whoappeared amicw curiae to the prooeedings.
lVe would also like to r€cord our appreciation to the team of Counsel
assisting the Inqur.ry, namely,I-eeGacuiga Muthoga fi-eading Counsel), Timan
Ndere Njugi and John Walter Onyango-Otieno. Their assistanco was in-
valuable, in our efforts to ascertain the truth.
Secreta.
We must express our sincere appreciation of the contribution of the
,
ries to the Commission Jared Benson Kangwana and Benjamin Patrick Kubo.
i".
We are indebted to them. They brought to bear their legal knorledge, as
well as their previous inquiry experien@, in aid of the Proceedinp and the
compilation of this Report. Our work mlght have been welt nigh impossible,
had it not been for their unswerving devotion and hard work.
+!
HON. JUSTICE C. H. E. MILIJER,
Chairmm.
HON. JUSTICE C. B. I\{ADAN,
Conunisstowr,
HON. JUSTrcE E. OWI.JOR (Mns.),
Commissiorcr,
(v)
1
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ItrMRODUCTION
l. We, Hon. Mr. Justice C. H. E. Miller, E.B.S., (Chairman), Hon. Mr.
Juetice Chuuilat B. Madan, Q.C., and Hon. Justice Mrs. Effie Ornuor, were
appointed Commissioners by His Excellenry the President of the Repu,blic
o,f Kenya umder .the Commissions of Inquiry Act, Chapter 102, of the Laws
of Kenya as p€r:
(il Gazette Notice No. 2749 dated 26'th oi July, 1983 and published on
the 29th of July, 1983.
(ii) Gazette Notice No. 4051 dated the 20th of October, 1983 and published
on the 2lst of October, 1983.
Citrtion
To inqr.r,ire into allegations made within and outside Parliament involving
Charles Mugane Njonjo, former Minister for Constitutional Affairs and
Member of Parliament for Kikuyu Constituency, that he conducted himself
in a manner prejudicial to the State and calculated to cause alarrn and
despondency with a view to undermining the office of the Head of State
of the Republic of Kenya andthe image and performance of the Government
thereof as by law established and generally or in particular to matters apper-
,taining
thereto.
Terms of Reference
(a) to inquire ftn'to allegations that Oha,rles Mugane Njonjo conducted
himself in a manner prejudicial ,to the security of the State, the
position of the Head of State, the image of the Preident and the
oonstitr.ltionally estaiblished goveflrment of the Republic of Kenya
including, among o,thers,
allegations that he was a party to a conspiracy or conspiracies
to overthrow, by unlawful ltlealui, the Government of the RepuElic
of Kenya, during the. month of August, 1982, or the concealment
thereof; was a party to the unlawfu'l activities of one Andrew
Mungai Muthemlba, or the concea,lment thereof; artd was a paxty
to the convening of the purported Rungiri Presbyterian ChurcE
of East Africa prayer meeting on l2th of fune, 1983 and/or its
conversion into an irregular political gathering with the intention
of undem,ining dhe position and image of the President and the
political leadership in the country;
(D) to inquire into allegations that Charles Mugane Njonjo acted against
Kenya's national ,interest and potcy of maintaining good neighbour-
liness and of opposing the inhuman regime of South Africa including,
among others,
(vii)
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allegations that he was a party to a conspiracy or,conspiracies ftt
to overthrow by unlawful means the brotherly government of fhe t
Republic of Seycholles as by law established, during the mon0h of
{:
Novemrber, 1981, especial,ly when His Excel,lency the P,resident of li
tI
Kenya was Ohairman of the Organization of African Unity; I
(c) to ,inquire into allegations that Charles Mugane Njonjo misused his l.
l.
office as AttorneyCeneral and/or Minister including, among others, tIt:'.
f
allqgations ,that he arrogated to himsolf the duties and po,wers of
l,
the President; that he so icited or received or attempted .to receive I!
or offered or made or attempted to make corrupt payments, t1t'',
granted favours or acted to the prejudice of indiv,iduals, to smk !
political support, to undermine the process of democracy and to iIr
protect persons involved in illegal actit''rties; TftI
t.
(d to inquire generally or in particular into any mafter pertaining to the ,t:;
above; I*,'
and in accordance with the p,rovisions of Section 7(1) of the said Act, ['
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to report thereon.
I
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2. Under Gazstte Notice No. 2749 and Gazette Notice No. 4051, Jared
Benson Kangurana and Benjamin Patrick Kurbo were appointed to be the ti',
Secrotaries to ttre Inquiry. I
I.
3. Under Gazctte Notice 4051 Lee Gacuiga Muthoga, Ti,man Ndere Njtrgi
and John Walter Onyango0tlieno were appointed to be Counsel to assist
the Inquiry.
4. Furthe,r, by the said Gazette N,otice No. 4051 we the Commissioners
were direoted in accordance with.the provisions of Section 10(1) of the mid
Act to sutrunon the said Charles Mugane Njonjo, and any other person or
persons cpnce,med, to testify on oath and to produce any,books, plans ancl
documents that the Comrnissioners may require.
5. In acrcordance with Section 5 of the said Act, we the Commissiomers
on the 3rd day of August, 1983 made and subscribed an oath in the
prescribod form be,fore a Judge of the High C-ourt, prior to e,mbarking on
our d,u,tim as Com,missioners.
6. Tftrere being no regulations made as provided by Section 19 of the
C\vnunissions of Inquiry Act, by authority of Section 9 thereof, we devised
appropriate Rules and Procedure to regulate the proceedings of the Inqtrry,
which we handed out on the 10th day of January, 1984. The said Rules
and Proced'ure a,re sot ou;t in Allpendix "A".
7. As directed, the Inquiry was held in the Old Chamber, Parliament
Buildings, Nairobi commencing on the 28th day of October, 1983 at 10.00
a.m. Charles Mugane Njonjo was notified of the holding and the hearing
(viii)