The Waki Report: Impunity dying hard in Kenya

Nearly a year on since the post-election crisis shook the very foundations of Kenya's current establishment, what lessons have been learnt?

As part of the National Accord brokered in February 2008 to allow a power sharing agreement between Mwai Kibaki and Raila Odinga, a veteran judge by the name of Justice Philip Waki was given the mandate to head a team to investigate the violence which followed the rigged 2007 presidential elections.

And he did just that. The results published by the Commission of Inquiry into Post-Election Violence (CIPEV) in mid October in a whooping 529 page report are a scathing indictment of Kenya's political culture of impunity and endemic violence from top to bottom.

Kenyan civil society, notably the Kenyans for Peace Truth and Justice (KPTJ) network played a significant role in assisting the CIPEV's investigations and have since been ferociously active in raising critical awareness on Waki's findings. But nearly two months on since it was revealed, Kenyans still wait to hear how the government intends to implement the Waki Report's recommendations.

The Waki Report is a historic document that illustrates how violence has become institutionalised since the re-introduction of multi-party politics in 1991 and is part and parcel of competing for political and economic privilege under a highly powerful and personalised presidential system.

It charges that the Kenyan security agencies "failed institutionally" to contain and prevent the violence and were also complicit in gross acts of violence and human rights violations. The state security agencies contributing to a third of the total deaths during the post election crisis. Precisely 405 out of 1133 people killed, died of gunshot wound, often defenceless in what could count as extra judicial killings as the director of the Kenyan Human Rights Commission, Muthoni Wanyeki affirms:

"Many of those deaths by gunshots had happened while people were around their homes or showing bullets in their backs and would therefore qualify to be classified as extra-judicial executions," she said in an interview.
"So apart from saying that the security services were uncoordinated and unprepared, it also points to the fact that they contributed significantly to the violence."

Very significantly the Waki Report devotes an entire section to sexual and gender based violence during the crisis, providing bone chilling testimonies of women who were victims of gang rape either by security forces or by militias. This serves as a reminder that women bore the brunt of Kenya's post-election crisis and speaks milestones for the need to narrate this dark episode in Kenya's history in terms beyond the simple frames of tribal politics.

Other than just pointing at state complicity and failure to protect the Waki Report also shows that whereas in Kisumu and Nairobi violence tended to be largely a spontaneous reaction to the election result, in the North and South Rift Valley it was more deeply organised, often with the complicity of "political and business leaders".

Most Kenyans are aware that the election-related violence in the Rift Valley goes back to the tenure of former president Daniel arap Moi during the 1990's, when the hiring of gangs to intimidate, kill and displace potential opposition voters became a common tactic.

The audacity of Moi being broadcast on KTN this week playing the elderly statesman at a recent rally (http://uk.youtube.com/watch?v=e2b3WfcGZuo&eurl=http://www.eastandard.ne…?), and blaming Africa's economic woes on greedy leadership, simply drives home the extent to which political impunity is entrenched in Kenya.

Although the ethnic contours of political parties and candidates changed in 2007, the highly personalised nature of presidential power under a still largely authoritarian constitution has created a climate of fear which politicians easily exploit and use to mobilise violence.

To his effect, many violent gangs such as Mungiki, Taliban, Chinkororo and others originally formed to substitute a lack of public security in more marginalised areas, continue to play a political role especially during elections.

Furthermore, historical land grievances exacerbated by political land grabbing, ethnic and regional inequalities, widespread youth unemployment and the failure of Kibaki's first government to prosecute previous perpetrators of political violence; has simply added fuel to the fire. Waki himself concludes:

"Currently Kenya is at a critical juncture. Violence is endemic, out of control, is used routinely to resolve political differences, and threatens the future of the nation. Because of the ethnic nature of the post-election violence, ethnic fears and hatred have been elevated in importance and could turn violent again even more easily than has happened in the past. What is required...is political will and some basic decisions to change the way politics is conducted, as well as to address its intersection with other issues related to land marginalisation and inequality and youth."

The Commission has called for the establishment of a Special Tribunal for Kenya, a hybrid court of Kenyan and International judges to try those bearing the greatest responsibility for crimes relating to the 2007 general elections. The tribunal is to be put into effect by a signed agreement between Kibaki and Odinga and a statute enacted into law within 60 days of the presentation of the Waki Report. These have yet to be realised as we approach the deadline currently set for the 17th of December 2008.

Should this condition not be met, a list of names of those suspected to bear greatest responsibility in the post-election violence, which reportedly includes several cabinet ministers and a senior police chief, will be sent to the International Criminal Court in The Hague. At the moment only Kofi Annan is in possession of the secret list in his role as Chairman of the African Eminent Personalities and chief mediator.

However the Waki Report recommends a series of institutional reforms that the political class have been too self absorbed to notice. These include a complete revamping of the state security apparatus to include a modern code of conduct, civilian oversight and integrating the notorious Administration Police under a single command structure amongst other things. Alongside this it also recommends serious a reform in the whole criminal justice system, a fast tracking of an international crimes bill and a witness protection act to facilitate the tribunal. No small task by all means.

While Kenyan civil society has hailed the Waki Report as a watershed in condemning the deep seated culture of impunity at the heart of Kenyan politics, the report's findings have yet to made available to a large portion of Kenyans who can't access the report let alone read it. Nonetheless judging on past experience, many remain cynical on how committed the government is to implementing its recommendations.

George Nyongesa is a grass roots organiser working with Bunge la Mwanainchi, a grass roots organisation dedicated to the new awakening among the Kenyan citizenry (http://www.bulamwa.co.ke/). Members of Bunge were arrested in September after leading a series of protests over the rising food prices which have been impacting the countries poorest, an example in George's words of the highest ends of impunity. He expressed to me his doubts:

"Waki has come to be a semblance of hope for Kenyans who for so long have suffered in the heavy hands of injustices from the ruling class. But a majority of Kenyans still do not understand the content of the Waki Report, least how it should be implemented. In fact right now the mood on the ground is that Kenyans are not confident of a local tribunal. The reason is that we have a history of broken promises and miscarriages on justice so Kenyans would prefer to see these perpetrators be tried at The Hague."

The predicament expressed here is not unusual.

Not only have the previous inquiries over electoral 'clashes' such as the Akiwumi Commission been shelved without minimal effort to bring the perpetrators to justice; how does one go about implementing a report which targets political impunity when the same people who may be liable remain in important public offices? Concerns seem to be directed towards those implicated members of the security services who currently enjoy greatest impunity.

Given benefit of the doubt, the Waki Report has thought through these issues an sought to provide safeguards to prevent the reoccurrence of what happened with the Akiwumi. Certainly the choice not to publicise the names of those suspected of highest responsibility was a smart move. To this extent Judge Waki truly understands the extent the U.N textbook definition of impunity fits Kenya.

"Impunity is the impossibility, de jure or de facto, of bringing the perpetrators of violations to account - whether in criminal, civil, administrative or disciplinary proceedings - since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty sentenced to appropriate penalties, and to making reparations to their victims."

However it is to be seen whether a hybrid court including a mix of international judges and staff which can operate above and beyond Kenyan law will sufficiently guard off political manipulation. Muthoni Wanyeki has pointed out possible problems with advocating international law as the crimes enumerated in the Rome such as genocide or ethnic cleansing may not correspond to what went on in Kenya. She has also voiced the urgent need for implementing a witness protection act.

"There is critical need for witness protection. People were very brave and very courageous and came forward to give CIPEV what they knew about the forms of organised violence, on both sides. It is very clear that those people are being targeted now, and the capacity of the state to protect them is dubious given that the state itself was involved."

KPTJ have also expressed an appeal to the International Community asking them not to be complacent or call this a Kenyan problem which requires a Kenyan solution. But the question of a foreign legal intervention is a contentious one and Kenya should certainly attempt to learn from both the South African and the Rwandan tribunals.

Onyango Oloo, a former political prisoner and exile and currently the Secretary General of the Social Democratic Party as well as being an active member in civil society argues that Kenya rightly or wrongly has been caught up in the politics of globalisation. Political actors have become increasingly savvy at disguising global interests in local level politics and conversely dressing local issues as global imperatives. Over all of this there is an urgent need for Kenyans to reclaim the agenda.

"What i am saying is that Kenyans have to reclaim the agenda. The Kofi Annan led forces, and the voices of the various envoys may not be guided by the principles of social justice or democracy. They may be talking about geo-politics, stability, their ideological interests in trying to say; Ok Kenya seems to be a bulwark against this and that, we want to set up Africom, we want to establish another market in East and Central Africa therefore we need a Kenyan stability for that reason'...they may not care a little bit about what we as Kenyans have been fighting for the last 50 years, in terms of a new Kenya with democracy."

His words echo the call for civil society to re-connect with the Kenyan masses and begin acting as the channel rather than the chaperone for grass roots communities, through which diverse communities can articulate their struggles whether concerning gender violence in the slums or food scarcity in the remote rural areas. Only this way can Kenya's culture of impunity really be challenged from bellow.

As I write various initiatives are actively underway in disseminating information in through innovative technologies, organising public forums and civic education programmes in more remote communities. For example the Partnership for Change initiative by Mars Group Kenya and the Kenya Network of Grass Roots Organisations (KENGO) have been advancing strategic use of non-violent action in calling for an end to impunity and restoring democratic accountability and ending dictatorships in Kenya. Their position is the following:

"To advocate and educate Kenyans on the need for full implementation of all aspects of the National Accord of February 28th 2008 and particularly the full implementation of the Commission of Inquiries into post-election-violence (Waki), into the electoral process (Kriegler), the proposed Truth Justice and Reconciliation Commission and the National Ethnic and Race Relations Commission. Our position is that failure to implement the National Accord constitutes grounds for a fresh election of a Parliament and Executive for Kenya."

(http://marsgroupkenya.org/partnershipforchange/agenda.php)

As Kenya approaches Jamhuri Day, the most important national holiday to commemorate both the date of independence and it's establishment as a Republic on the 12 December 1964, many Kenyans will find it tough conjure their famed celebratory spirit.

With many Kenyans tightening their belts following a near doubling of basic commodities prices such as maize flour and kerosene, the current grand coalition Government shows no signs of tightening expenditure budgets over the lavish state festivities which will inevitably follow the Presidents annual state-of-the-nation address.

Whether renewed state-of-the-nation promises will fill empty belly's remains to be seen.

* Nico' Gnecchi is currently studying at St Antony's, Oxford University

* Please send comments to [email protected] or comment online at http://www.pambazuka.org/