BY JOHN NDETA
After the signing of the National Accord on February 28, 2008, Kenya embarked on a new chapter with various commissions being set up to look into what ails the country and make recommendation on the way forward.
One such body was the Commission of Inquiry into Post-Election Violence (CIPEV) headed by Justice Philip Waki. The mandate of CIPEV was to investigate the facts and circumstances surrounding the violence, the conduct of state security agencies in handling it, and to make appropriate recommendations.
One of the main findings of the Commission\’s investigations was that the Post election violence (PEV) was spontaneous in some geographic areas. But in others like Nairobi, Naivasha and parts of Rift Valley; the commission was categorical that violence was as a result of planning and organisation owing to systematic attacks on Kenyans based on their ethnicity and their political standpoints.
Some areas witnessed a combination of the two forms of violence, where what started as a spontaneous violent reaction to the perceived rigging of elections later evolved into well organised and coordinated attacks on members of ethnic groups perceived to be in the opposing camp. This happened where there was an expectation that violence was inevitable whatever the results of the election.
The commission thus concluded that the 2007/8 PEV was not just a combination of citizens-to-citizens opportunistic assaults as some politicians would want Kenya and the entire world to believe. The attacks were organised along ethnic lines, assembled considerable logistical means and travelled long distances to burn houses, maim, kill and sexually assault their occupants because these were of particular ethnic groups and political persuasion.
Guilty by association was the guiding force behind deadly "revenge" attacks, with victims being identified not for what they did but for their ethnic ass possible by the lawlessness stemming from an apparent collapse of state institutions and security forces.
In general, the police were overwhelmed by the massive numbers of the attackers and the relatively effective coordination of the attacks. However, in most parts of the country affected by the violence, failure on the part of the Kenya Police and the Provincial Administration to act on intelligence and other early warning signs contributed to the escalation of the violence.
The post-election violence is also the story of lack of preparedness of, and poor coordination among, different state security agencies. While the National Security Intelligence Service seemed to possess actionable intelligence on the likelihood of violence in many parts of the country, it was not clear whether and through which channel such intelligence was shared with operational security agencies.
The effectiveness of the Kenya Police Service and the Administration Police was also negatively affected by the lack of clear policing operational procedures and by political expediency\’s adverse impact on their policing priorities.
The report recommends concrete measures to improve performance and accountability of state security agencies and coordination within the state security mechanism, including strengthening joint operational preparedness arrangements; developing comprehensive operational review processes; merging the two police agencies; and establishing an Independent Police Complaints Authority.
To break the cycle of impunity which is at the heart of the post-election violence, the report recommends the creation of a special tribunal with the mandate to prosecute crimes committed as a result of post-election violence. The tribunal will have an international component in the form of the presence of non-Kenyans on the senior investigations and prosecution staff.
Chapter 13 of Waki report has 13 main recommendations all anchored on the administration of justice for the PEV victims. All the 13 talk of the formation of special tribunal to administer this in Kenya with international instruments. But recommendation 5 talks about when and if the Special tribunal fails to materialise.
The two main issues that the Waki Commission addressed itself to relate to State Security Agencies and issues of impunity. The discussion, findings and conclusions that the recommendations are based upon are fully laid out in the preceding chapters.
In accordance with the established Terms of Reference regarding recommendations for measures to eradicate impunity, legal and administrative measures and following an investigation into the actions and omissions of the State Security Agencies, the Commission makes the recommends appearing below.
These recommendations should be implemented under the auspices of the Panel of Eminent African Personalities acting in consultation with the President and the Prime Minister of Kenya, with the full co-operation of Parliament, the Judiciary and the office of the Attorney General as more specifically described below. It was further recommended that The Bill establishing the Special Tribunal shall ensure that the Special Tribunal is insulated against objections on constitutionality and to that end, it shall be anchored in the Constitution of Kenya.
In recommendation 5, the Commission submitted that If either an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to commence functioning as contemplated above, or having commenced operating its purposes are subverted, a list containing names of and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court.
The Special Prosecutor shall be requested to analyze the seriousness of the information received with a view to proceeding with an investigation and prosecuting such suspected persons.
If this was to be the course of action as it has turned out to be the Recommendation 4 of the other recommendation after the main ones that talk of a special tribunal says: All persons holding public office and public servants charged with criminal offences related to post-election violence be suspended from duty until the matter is fully adjudicated upon.
It is a mockery of justice that Ocampo Six face charges at The Hague and yet three of them still serve in top Government positions. For some of them it is not just that they serve in Government but are members of top security committees in the country. Worse still, they still imagine that they can vie for elective positions come 2012 regardless of the way the case of violation of human rights at The Hague goes.
The Kenyan electorate has also been treated to political theatrics by some of those accused and their proxies saying that they will be back (from The Hague) and are in the 2012 race.
But CIPEV report recommendation 5 which states that upon conviction of any person charged with post-election violence offences of any nature, such persons shall be barred from holding any public office or contesting any electoral position should be sending shivers down their spine.