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Waki Commission should be thorough

NAIROBI, July 8 – The Commission of Inquiry into Post-Election Violence [CIPEV] begins its investigations and gathering evidence from the public on Wednesday.

International Centre for Policy and Conflict [ICPC] recognises the daunting task and the high expectation bestowed upon the Commission. In the face of historical Kenyan State, utter lack of resolve to investigate and prosecute those responsible for horrific crimes, gross human rights violations and grave acts of impunity, it is expected that the Justice Waki-led Commission must demonstrate commitment, effectiveness and efficiency to deliver. 

An act of failure on the part of the CIPEV would be too costly to bear for the country. The Commission malfunction would not only be measured and judged in innocent lives brutalised and maimed and property destruction but also in the anguish  that continues to be suffered by the survivors as well as  fear and uncertainty that remains in the communities and individuals that were adversely affected by the post-election violence.

CIPEV must not run away from its responsibility, but rather it should be determined to bring into end acts of impunity especially amongst the top level political leadership. ICPC is strongly urging all Kenyans in their search for long term solutions for the present and past injustices and grievances, including post-election violence and human rights violations, to acknowledge that sustainable peace could be achieved by confronting not only the present governance crisis but also Kenya’s past heinous episodes of repression, violence, impunity and chronic structural inequalities.

As a country facing a strained transition to full-fledged democracy, Kenya has a moral and political imperative to bring to justice those responsible for engaging in horrendous acts of impunity and grave human rights violations either as the kingpins or foot soldiers.

As a practical matter, only a fearless resolve by Kenyans (with international assistance) can bring many of these individuals and institutions to justice and accountability. 

CIPEV, the government of Kenya and the international community, collectively, have little choice but to take firm and decisive actions to ensure that  proper, thorough  and professional investigations and prosecutions of both those bearing the greatest responsibility (decision/policy makers) and those most responsible (middle and lower cadre foot soldiers) for committing crimes and gross human rights violations including the culpable institutions and individual citizens in the post-election violence.

Otherwise, the culture of impunity would endure for long posing a serious threat to the future rule of law, human rights and democracy in Kenya with a possibility of the Kenyan state degenerating into anarchy and collapse. Survivors and victims of post-election violence have the right to appropriate remedy against human rights violations suffered.

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CIPEV must amass and establish as much factual truth and evidence in order to facilitate, satisfactorily, the pursuance of justice. It has to appreciate and guarantee that the right to truth, justice and reparations of the victims would not be violated but instead are vigorously pursued and guarded. 

In regard to this reality, ICPC would like to raise several serious concerns in relation to the Commission of Inquiry into Post-Election Violence (CIPEV) thus:

Gender Bias: While we have no misgivings over the integrity and credibility of the Commissioners and supportive secretariat, ICPC is abhorred by the grave disregard of gender consideration in the appointment of the Commission. How would the Commission handle sensitive and delicate matters that touch on sexually related violence and offences? There has to be a thorough remedial measure to this serious anomaly in order to guarantee that gender related violations, and more particularly womens’ rights violations, are not sidestepped but given special attention during the Commission’s work and operations. 

Gender Related Violence: The mandate and scope of CIPEV does not clearly and specifically state or mention the sexual and gender related violence investigations yet many cases of sexual violence have been reported and were part of the atrocities committed. This means that crimes associated with sexual and gender related violence might never be investigated sufficiently and satisfactorily by the Commission and those responsible would escape accountability and justice. Courtesy of the Rome Statute and two international tribunals i.e. International Criminal Tribunal for Yugoslavia [ICTY] and International Criminal Tribunal for Rwanda [ICTR] sexual violence and crimes associated with it are internationally recognised as crimes against humanity.

Amnesty Question:  CIPEV must not abdicate its responsibility in providing the correct solution on the amnesty question informed by intensive diagnosis and prognosis of its findings, the Kenya Constitution and the international protocols and conventions that Kenya has signed and ratified relating to amnesty, including the International Criminal Court statute. There is international jurisprudence on this matter which CIPEV must invoke and apply. The Commission must confront the amnesty issue directly without fear or favour in order to enable courts locally to set the necessary jurisprudence at the appropriate time. CIPEV must not shy away from resolving the amnesty issue based on internationally acceptable standards and practices.

Police and other state institutions’ role:  The frequent use of the law-enforcing agency for political purposes vitiated the democratic norms and human rights standards for long in Kenya. There is no system of accountability and civilian oversight within the existing policing system. The role of law enforcement agencies and National Intelligence Services [NSIS] in the prelude to the election, during the electioneering and post-election must be tackled forthwith with the precision and comprehensiveness that it deserves.  Avoidance of this aspect of investigations would amount to cover-up and protection of the duty-bearers with responsibility to protect citizenry. Due to sensitivity of the Commission’s work, the politicians and security apparatus would attempt to manipulate evidence by either lining up witnesses or intimidating the Commission.  CIPEV must be alive and careful to this reality.

CIPEV Independence:  In order for Kenyans to have confidence with the Commission, her independence both in funding, staffing and operations must not only be seen to be impartial, transparent and accountable but it must execute its mandate and responsibility as so to the end without any undue interference.  CIPEV should insulate itself against acts of manipulation, arm-twisting or blackmail. The agreement establishing CIPEV gives it powers to access documentation, data or any information including summoning person(s) who the Commission feels have crucial evidence. As such ICPC expects that CIPEV shall look into all cases currently under police investigations with any obstruction or hurdles provided such cases are related to post-election violence.

Witness Protection: There is a disturbing and dangerous lack of competent and coherent strategy for witness protection and confidentiality of information. The witness protection strategy of CIPEV is weak and lacking in relevancy. It is likely to put witnesses at risk of reprisal and putting justice in jeopardy. CIPEV and government of Kenya must do more to ensure witnesses are not only sufficiently protected but also the information they give is kept confidential.

Timeframe: ICPC believes that the three months allocated to the CIPEV to complete its work might not be sufficient to satisfactorily do a thorough work. While every one expects the Commission to observe due diligence and effectiveness in doing its work, the CIPEV should not be constrained of time.  The Commission needs to be given a leeway of seeking extension of time if it feels there are more facts and investigations that require further collection and collaboration.

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Recommendations’ Implementation: Unlike previous Commissions’ reports that have never been implemented, extra vigilance would be required to force government to act on CIPEV recommendations. ICPC strongly recommends if CIPEV finds that serious crimes were committed then the Ministry of Justice and Parliament should enact laws establishing Special Chambers within the current judiciary to specifically handle the prosecutions arising from the CIPEV reports. Only an impartial, fair and effective court that abides by the highest United Nations standards can help put an end to the cycle of impunity and violence and begin restoring respect for human rights in Kenya.

(Ndung’u Wainaina is the Executive Director, International Centre for Policy and Conflict [ICPC])

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