The Cockar Commission into the sale of the Grand Regency Hotel (as was) has completed its work and handed its report to the President. Since not a single witness, among them his erstwhile accusers, mentioned the Kipipiri MP adversely, it is expected to absolve him of any wrongdoing, either of omission or commission, in this matter.

It has been argued that former Kimunya ought not to be reinstated until the report of the Parliamentary Committee looking into the same affair is in. That seems odd. Think about the principle of total evidence.  If one excludes the Cockar report from consideration, then one's fallen foul of that principle. If one chooses instead to weigh the Cockar and Parliamentary reports equally, then one lacks a reason to think that Kimunya is (factually or legally) guilty, for if they have equal weight yet point to different conclusions, then it would be arbitrary to choose between them. If one thinks the Parliamentary report has greater weight, one ought to hurry up and share one's reasons for doing so now.  In every case, anyone who wants to show that Kimunya ought not to be reinstated has to show a reason for preferring the findings of the Parliamentary report.

As it happens, there are compelling reasons to prefer the Cockar report. Accusers and accused had the opportunity to present their cases; it was public; it sought evidence from a variety of experts; and none of those sitting in judgment of Kimunya had a direct interest in the verdict. Indeed, it was discovered in testimony that one of Kimunya's key accusers, James Orengo, simply did not know what he was talking about: he was wrong about the valuation of the hotel (and proven to be so by three separate expert witnesses); he was wrong about the sale procedure; and he was wrong in his claim that Kimunya had misled Parliament.

This last is important since one at least apparently meritorious argument I've seen for excluding Kimunya goes like this. The Cockar Commission lacks the mandate to determine whether Kimunya misled Parliament, because its terms of reference did not explicitly grant it the power to do so. Therefore, whatever the findings of the commission, it remains an open question whether Kimunya misled Parliament, so he ought not to be reappointed while the question remains unanswered.

That reading of the Commission's terms of reference is probably incompetent. The third of their terms of reference  was to 'perform any other task that the Commission may deem necessary in fulfilling the foregoing terms of reference'. To determine whether wrongdoing had occurred, it would - obviously - be necessary to determine whether Kimunya had lied to Parliament, as his main accusers alleged: it follows that a finding, implicit or explicit, on whether Kimunya lied to Parliament is within the Commission's TORs.

In any case, if the evidence heard by the Commission rules out the charge that Kimunya lied to Parliament, then it is no longer an open question whether he did. We shall have to wait for the public release of the full Cockar report to have that question answered. Meantime, the portents are good: James Orengo, when summoned to a hearing of the Commission admitted that he had been unable to find evidence of Kimunya's wrongdoing. (As reported in the Standard, of all places.) Kimunya, at least on these grounds, stands exculpated.

Finally, and now that we are all seized up in the spirit of putting an end to impunity, and saving taxpayer money, the mendacious Minister for Lands, who put the nation through this trying period, and cost the taxpayer vast amounts of money, must be held to account. James Orengo is demonstrably no fool, and neither was he ignorant of the facts of this case. His accusation before parliament, the media and the public at large has been very expensive for Kenya.

It has made a mockery of, and diminished the effect of future whistle-blowing efforts. Worst of all it has demonstrated, regrettably for Parliament and a legal practitioner of Orengo's stature, a preference for witch-hunts and mob justice over investigation and due process. The knife that cut Kimunya out in the name of defending the taxpayer, can, or at least ought, to cut both ways.