NAIROBI, Kenya, Mar 19 – Appeals Court judge Philip Waki has filed a preliminary objection to the application by activists David Matsanga and John Kimani to have the contents of the Waki envelope made public.
Waki instead wants the High Court to throw out the petition arguing that it is “bad in law,” and “the petitioners do not have a right to the reliefs sought.”
He argues that Matsanga for instance, is not a Kenyan citizen and “cannot therefore bring the instant petition within the provisions of Article 35.”
He also argues that there is already a similar petition before the Mombasa High Court filed by Kepha Mwebi against him and others.
Even so, he continues to argue, he cannot be personally compelled as the Chairman of the Commission of Inquiry into the Post Election Violence of 2008 (CIPEV) to divulge the findings.
“No civil action or suit can lie against the first respondent (Waki) by virtue of Section 14 of the Commissions of Inquiries Act.”
The findings of which were presented to President Mwai Kibaki, he submitted, and were therefore now the property of the State.
CIPEV itself, he added, could not be sued as it was disbanded in 2008 as soon as its work was done.
“The report by the commission was submitted on October 15, 2008 before the promulgation of the new Constitution 2010 which cannot apply retrospectively,” Waki submitted through lawyer George Oraro.
He also challenged the reasons given by the two for their application saying they had not provided proof of their submission that Matsanga had challenged the decision of the International Criminal Court (ICC) to adopt of the Waki report in the case facing Deputy President William Ruto and journalist Joshua arap Sang.
“The petitioners have not stated what rights or fundamental freedoms they seek to protect. It is not enough for them to allege a purported application before the ICC without evidence when it is a matter of judicial record that neither of the petitioners is a party to the proceedings before it.”
Matsanga and Kimani had told the court that it was necessary to have their application for the contents of the so-called Waki envelope heard urgently given the case against Ruto and Sang resumes on March 23.
“On February 13 the first petitioner filed an application before the ICC… (which) will be highly prejudiced… as the public documents being withheld secretly by the respondents (Waki, the ICC and the Attorney General) are crucial and necessary in prosecution of the above referenced application.”
They also argued that the continued withholding of the Waki commission’s finding on the alleged masterminds of the 2008 PEV had led to heightened tension in light of Ruto’s pending case before the ICC.
“Non-disclosure of the names contained in the aforementioned report may lead to unnecessary blame and accusations being traded between supporters of the various persons suspected to be in the list which may end up in violent attacks,” they submitted.