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Philip Waki’s ticking bombshell

25 November 2008

When Justice Waki handed over his report on the post-election violence in Kenya he took precautions to guarantee it wouldn’t be ignored, writes Xan Rice in Nairobi

Right:

Above: Former UN secretary general Koffi Annan (left) talks to Justice Philip Waki, who headed the Commission of Inquiry into Post-Election Violence, before receiving a copy of the report on Kenya's post electoral violence
Photo: Tony Karumba/AFP/Getty Images

Above: Former UN secretary general Koffi Annan (left) talks to Justice Philip Waki, who headed the Commission of Inquiry into Post-Election Violence, before receiving a copy of the report on Kenya's post electoral violence
Photo: Tony Karumba/AFP/Getty Images



WANGUI MBATIA is no stranger to the Kenyan police. The gutsy leader of the Kenya Network of Grassroots Organisations had already been detained six times for political protests by the time I met her in Nairobi earlier this month. A few days later I received an urgent email saying that Mbatia was on her way to the police station once more. This time she had managed to offend the authorities without even opening her mouth.

She and a few dozen other activists had been wearing and distributing specially printed T-shirts in Jeevanjee Gardens in downtown Nairobi. One read “No taxes for MP’s, No taxes for us” – a reference to the decision by Kenya’s parliamentarians, among the best paid in the world, to shoot down a proposal that they should start paying tax. But it was the message on the other shirt that earned Mbatia a charge of unlawful assembly. “Yes to Waki”, it said – three words that have caused weeks of debate in Kenya and terrified numerous members of the hitherto untouchable political elite.

Justice Philip Waki, a veteran appeal court judge, headed a team tasked with analysing the violence that followed Kenya’s dubious presidential election on 27 December last year. More than 1300 people were killed and at least 300,000 forced from their homes after President Mwai Kibaki was declared the winner.

Waki’s mandate derived directly from the peace accord brokered by former UN secretary general Kofi Annan, which saw Kibaki and opposition leader Raila Odinga agree to share power. After holding public inquiries throughout the country, Waki, New Zealander Gavin McFadyen – a former assistant commissioner of police operations – and Congolese human rights expert Pascal Kambale produced a 529-page document, the Commission of Inquiry into Post-election Violence, or the Waki Report.

Its conclusions were damning of both the state and individual politicians. In dealing with the chaos state security agencies “failed institutionally,” Waki said, with some officers guilty of gross human rights violations. The police alone shot dead 405 people, most of whom were defenceless. Many of the victims were in Kisumu, the western lakeside town whose residents are mainly Luo, the ethnic group of Odinga, who was widely expected to win the election after leading all the opinion polls and the vote counting until the final hours. After Kibaki was hastily sworn in thousands of young men rampaged through downtown Kisumu, looting and burning shops; the police responded by shooting on sight.

The Kisumu violence, as with many of anti-Kibaki demonstrations in Nairobi’s slums, was largely spontaneous – an outpouring of anger at an apparently rigged election seen as prolonging the dominance of Kibaki’s Kikuyu ethnic group, which controls much of Kenya’s land and wealth. (While the Kikuyu elite, especially those with political connections, are super-rich, most Kikuyus remain as poor as the majority in the country’s 42 other ethnic groups.)

But the Waki Report illustrated how, in other parts of the country, the violence had a far more sinister, premeditated side, with deep roots. Politically sponsored ethnic clashes had become a feature of elections since Kibaki’s predecessor, Daniel Arap Moi, a Kalenjin, reluctantly introduced multiparty democracy in the early 1990s. In the Rift Valley, Kalenjin militias were used to attack and kill members of other ethnic groups before the polls in 1992 and 1997, in an attempt to prevent opposition supporters from voting.

This time the Rift Valley was again the theatre for the worst of the violence. Kalenjin mobs chased tens of thousands of civilians, mainly Kikuyus, from their homes, hacking to death hundreds of people. In the most infamous attack, a Kalenjin gang burnt at least seventeen Kikuyu women and children alive inside a church in Eldoret. I visited the site the following morning as the charred bodies were being removed by Red Cross workers. A few miles away hundreds of Kalenjin warriors lined the roads with their clubs and bows and arrows, taking orders from a local chief. I asked a few of them if they knew about the church attack. Yes, they said. There was no remorse.

Soon criminal Kikuyu gangs such as the Mungiki began taking revenge in towns such as Nakuru and Naivasha, targeting mainly Luos and Kalenjins who had nothing to do with the earlier raids. “Attackers organised along ethnic lines, assembled considerable logistical means and traveled long distances to burn houses, maim, kill and sexually assault their occupants because these were of particular ethnic forces and political persuasion,” Waki said in his summary of the violence.

Most important, however, were the report’s conclusions on the “involvement of politicians and business leaders” in organising and financing both the initial and retaliatory raids. This high-level complicity was an integral part of the violence, Waki said, and urgently needed tackling if Kenya's cycle of impunity is be broken.

The commission recommended that a special tribunal be established to try those bearing responsible for the worst crimes, especially crimes against humanity. Two of the three trial judges should be foreign – Kenya’s judiciary is not regarded as independent – as should as the head of the investigating team, it said.

Waki knew that Kenyan governments had perfected the art of setting up commissions to look into into high-level malfeasance and then completely ignoring the recommendations. So he built in a safeguard. He publicly handed a sealed brown envelope to Kofi Annan, reportedly containing the names of about ten people, including several cabinet ministers and a senior police commander, accused of crimes against humanity. If the proposed tribunal was not set up by the end of January, Waki said, the envelope would be forwarded to the International Criminal Court in the Hague, with a request to explore options for prosecution.

His recommendations caused a uproar among Kenya’s political class, for whom a parliamentary seat has always provided tacit immunity from prosecution for anything from graft to murder. Several Rift Valley MPs, led by the powerful agriculture minister William Ruto, threatened to walk away from Odinga’s party if Odinga supported implement Waki’s proposals. Others warned of violence if a tribunal was set up.

Odinga, whose recent cordial relations with Kibaki have proved one of the few encouraging signs in a terrible year for Kenya, has repeatedly stated his commitment to setting up a tribunal. Kibaki, as is his way, has said a few words about the need for forgiveness, but has not taken a public position. Uhuru Kenyatta, the trade minister and son of founding president Jomo Kenyatta, a Kikuyu, was scathing of the report, before softening his stance. So divisive is the issue that the cabinet has so far avoided discussing it, despite time running out.

Among ordinary Kenyans across the political divide, however, there is overwhelming support for Waki’s recommendations. In Kisumu, a young man called Ali Mohamed told me this month that “those involved in planning the violence should be punished,” even if they were from Odinga’s opposition party, which he supports. A poll by the Daily Nation newspaper this month found that 56 per cent of people wanted the report implemented in full, with only 18 per cent of respondents opposed to it.

“The average citizen knows that politicians were involved in the violence and wants them brought to book,” Wangui Mbatia told me after she had been freed on bail. “Otherwise they will think that what happened earlier this year is acceptable and it will happen again. We are sitting on a time bomb here.” •

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