IMPLEMENT THE WAKI COMMISSION REPORT OR QUIT. IT IS A NATIONAL ACCORD AGREEMENT AND NOT THE SUBJECT FOR INTERFERENCE OF SUSPECTS OR POLITICIANS!
Oct 30th, 2008 by Mars Group Kenya
FULL IMPLEMENTATION OF THE WAKI REPORT IS THE RIGHT OF KENYANS UNDER THE NATIONAL ACCORD OF FEBRUARY 28TH 2008 – OTHERWISE WHAT IS THE POINT OF THE GRAND COALITION GOVERNMENT?
The disastrous announcement by the Chairman of the Electoral Commission of Kenya, Samuel Kivuitu, at 5.40 p.m. on December 30th 2007 triggered an apocalyptic outbreak of nationwide violence which threatened to destroy Kenya, so much so that on February 28th 2008 at Harambee House it was agreed to immediately change the Constitution of Kenya to save our country.
The new Constitution of Kenya from that date incorporated the National Accord signed on the steps of The Office of the President Harambee House, Nairobi at about 5 pm on Thursday February 28th 2008. This Accord was witnessed by the Chairman of the African Union President Kikwete, the Panel of Eminent African Persons and by tens of millions of Kenyans who watched the event on live television. It is not a secret agreement and was ratified by Parliament.
The National Accord created a new constitutional office, that of the Prime Minister, and set up a power sharing arrangement between the Party of National Unity and its allies and the Orange Democratic Movement which is called the Grand Coalition Government. Kenyans accepted this odd arrangement because we had no other political option at that time – we accepted it and agreed to forego our constitutional right to have a legitimately elected Government as evidenced by a proper vote count and announcement by the Electoral Commission of Kenya.
But Kenyans wanted the past wrongs to be exposed and the wrongdoers punished – so that we never have to go through what we went through between December 30th 2007 and February 28th 2008 – and so that the wrongdoers do not enjoy impunity. Thus the National Accord also established high-level inquiries into the election process (eventually known as the Independent Review Commission headed by Judge Kriegler which reported to the parties to the National Accord on September 17th 2008); into the post election violence (eventually known as the Commission of Inquiry into the Post Election Violence headed by Judge Philip Waki which reported to the parties to the National Accord on October 15th 2008); and an inquiry into historical injustices (the yet to be established Truth Justice and Reconciliation Commission).
The purpose of the Kenyan National Accord was to find a political solution to a dispute which was destroying the country and had at that point claimed 1,133 lives and forced hundreds of thousands of Kenyans from their homes. To date many have not returned and the survivors of the murdered have yet to get their justice and recompense.
Compromise was necessary for the survival of the Nation is the way Kofi Annan put it. He was the leader of the African Union Panel of Eminent Persons who had been tasked to persuade Mwai Kibaki and Raila Odinga to abandon the politicians around them who were preparing for a bloodbath and concede that neither could govern the country without the other. Today Mwai Kibaki and Raila Odinga appear hostage to the same evildoers who did not want Kenya to end its slide into anarchy and decline. Really the same people who tried to torpedo the Kenya National Dialogue and Reconciliation process and the signing of the National Accord.
From February 28th 2008, Mwai Kibaki and Raila Odinga have led what is called the Grand Coalition Government whose raisson d’etre is to see to it that all the Kenya National Dialogue and Reconciliation Agreements are implemented – Agenda One to Four too. That is the only mandate which the Grand Coalition can claim because as Judge Kriegler told Kenyans it will never be possible to know who won the presidential election of December 27th 2007. This is an important point to make: if the Grand Coalition fails to implement the Agreements of February 28th 2008 and the decisions of the Kenya National Dialogue and Reconciliation process it should immediately cease to exist, and Kenyans can have an elected Government as is their constitutional and democratic right.
The following agreements and decisions constitute the National Accord:
• 01-Feb-2008 – Agreed Statement on Measures to Address Humanitarian Crisis
• 01-Feb-2008 – Annotated Agenda for the Kenya Dialogue and Reconciliation
• 04-Feb-2008 – Agreed Statement on Security Measures
• 14-Feb-2008 – Agreed Statement on How to Resolve Political Crisis
• 28-Feb-2008 – The National Accord and Reconciliation Act 2008
• 28-Feb-2008 – Agreement on the Principles of Partnership of the Coalition Government
• 04-Mar-2008 – Long-Term Issues and Solutions: Constitutional Review
• 04-Mar-2008 – Commission of Post-election Violence
• 04-Mar-2008 – Truth, Justice and Reconciliation Commission
• 04-Mar-2008 – Independent Review Committee
• 30-Jul-2008 – Statement of Principles on Long-term issues and solutions from 23 May updated with implementation matrix
All these decisions and agreements are now part of the Constitution of Kenya and unless we repeal the National Accord it is not open to anyone to try and blackmail the two Principals, Mwai Kibaki and Raila Odinga, into dropping lines of inquiry into the truth of what happened in Kenya that cost 1,133 Kenyans their lives.
This is the true position even for the eagerly awaited Truth Justice and Reconciliation Commission about which none of the people trying to trash the Waki Commission Report have dared speak.
The only just and proper thing to have done is to have full implementation of the Waki Commission’s Report – a report which makes eminently logical conclusions as to how to identify perpetrators for prosecution. I believe that there are sufficient constitutional safeguards for the soon to be accused persons built into Justice Waki’s report. The suspects are also fortunate that unlike their victims they will have due process and the benefit of safeguards against abuse of their rights under the Kenyan Constitution and under International Criminal Law.
In any event Justice Waki has only condemned institutions such as the entire internal security apparatus and especially the Kenya Police. National energies should not be diverted by potential suspects and strangers to the National Accord from the important and urgent work necessary to ensure that those institutions which failed us so horrendously are immediately reformed. The first reforms should be at the level of immediate personnel change.
We would start with the Commissioner of Police Major General Hussein Ali who exhibits no personal remorse about how his force gunned down 405 Kenyans in just over a month early this year, and who has promised to do what he did again should we ever have another bout of the madness which gripped us after the December 27th election. Reform of the Kenya Police is priority Number One.
It is especially important to end the impunity which the Kenya Police enjoys even as it is repeatedly found guilty of gross human rights violations and what amounts to crimes against humanity – see for example Wikileaks’ recent entry on Kenya.
A wise Kenyan once said:
Ukweli haiogopi tisho wala nguvu za majeshi
The truth is not intimidated by the threats and the might of armies
Ukweli itashinda kesho, kama leo haitoshi
The truth will win tomorrow, if today is not its day
Kenyans don’t be fooled – End Impunity now. Implement the Waki Commission Report or Quit should be the message to Parliamentarians. It is a National Accord agreement and not the subject for interference by suspects or unpatriotic politicians!
Mwalimu Mati
Nairobi
…there are sufficient constitutional safeguards for the soon to be accused persons built into Justice Waki’s report. The suspects are also fortunate that unlike their victims they will have due process and the benefit of safeguards against abuse of their rights under the Kenyan Constitution and under International Criminal Law.
PRESS STATEMENT BY MAJOR CIVIL SOCIETY ORGANISATIONS CONCERNING THE IMPLEMENTATION OF THE WAKI COMMISSION OF INQUIRY REPORT
Nairobi, October 30: We note the rare unity of the political class in dismissing the report of the Commission of Inquiry into the Post-Election Violence as inadequate and flawed. We also note the dismissive attitude of the police force towards the findings of the investigation, as well as the faultfinding by the Attorney General.
The commission chaired by Appeal Court Judge Philip Waki travelled around the country to visit the theatres of the violence, hear oral evidence on oath from 156 witnesses and take sworn (written) testimony from 144 people over four months. This is what the commission found:
1. The violence was initially a spontaneous reaction to the elections results and initially targeted government institutions, such as was the case in Nyanza. The initial intention was not to kill but to expel people and destroy property.
2. After that, the violence took on a more organised form. Politicians and businesspeople organised and planned attacks. The evidence of this was in the warnings people received, the numbers of attackers mobilised and moved, the weapons acquired and the secrecy involved in targeting people of
given ethnic groups.
3. The failure by the police to act on intelligence, to be impartial and professional in their work, as well as to respond appropriately only made matters worse. Police used excessive force. There was a discernible breakdown in the chain of command.
Findings:-
a. Deaths
1. The violence claimed 1,133 lives. This contradicts the official police figure of 616.
2. Gunshots were the most frequent cause of death, accounting for nearly four in every 10 deaths (35.7 per cent of total deaths). Police were found to be responsible for all deaths by gunshot. The commission also found that police response was uneven, even where faced with similar situations. In Nyanza and Western provinces, for example, police response was more brutal and the use of force, excessive.
3. The highest number of deaths by ethnicity are recorded as Luo (278); Gikuyu (268); Kalenjin (158) and Luhya (163).
b. Rape and sexual violence
4. Individual and gang rapes, sometimes using objects, were committed in front of families. Men as well as women were targeted based on their ethnicity and political affiliation. Genital mutilation, including castration and forced male circumcision, were rampant.
5. The police told the commission that there were no incidents reported of sexual or gender-based violence. General Service Unit, regular and administration police were however found to have taken part in the rapes (including gang rape) and obstructed reporting and investigations.
c. Official response
1. The Government did nothing to ease the tensions before the elections. It posted 1,600 Administration Police officers to Nyanza because, in the testimony of the Head of the Public Service to the Commission, it was hostile territory.
2. The Commissioner of Police ordered the release of Chinkororo and SunguSungu gangs involved in violence before the elections. Police officers were posted to receive and relay election results in orders clearly outside their call of duty.
3. The National Security Intelligence Service acted suspiciously outside its mandate by seeking 50 accreditations for election observers and conducting opinion polls in order to provide information to the Head of Public Service.
4. The police in North Rift and the provincial administration were unprepared for the violence, raising questions about their coordination with intelligence services. Although the commission noted individual acts of personal courage among police officers in saving lives, the police in North Rift participated in the violence, or were just divided and overwhelmed.
5. The Cabinet security committee never met throughout the election period and after, and there were no joint preparations for what would possibly arise. There were no formal meetings at the national level, raising questions about who was in charge and who was in control of the security
apparatus. Variations of this misnomer would be apparent at the provincial level.
6. The police ban on assembly and the ban on live broadcasting worsened the security situation in the country. Further investigations into police use of force and rape as well as records on the use of ammunition and supplies require independent investigators.
d. Impunity
The Attorney General is culpable for promoting impunity. He has been in charge of prosecutions for the entire time that the parliamentary select committee chaired by Kennedy Kiliku and the Judicial Commission of Inquiry chaired by Justice Akilano Akiwumi made recommendations about further investigations and prosecutions for ethnic-based violence. The AG’s role in failing to follow up on the Kiliku and Akiwumi reports is stark. For their part, the police claimed they had not even read the reports.
The recommendations
The political class is distorting the Waki Report to appear as if it only recommends their own punishment. Fortunately, it does more than that. Kenya is much bigger than the 10 or so people on the list of perpetrators that the commission has handed to the Panel of Eminent African Personalities. Given a choice between the 10 suspects and the 38 million Kenyans, our choice is obvious. Let us review the recommendations of the Waki team again …
1. The police have been severely indicted in this report. To quote, the criminal involvement of the police ranged from “murder to gang rape and looting”. A GSU officer hacked off a man’s hand. They stole and extorted bribes to protect people. The commission recommends that the administration
police should be abolished and its officers integrated into the Kenya police Service. These changes are long overdue. From the mediation agreement, Kenya should have an independent police commission by January 2009, the AP review should be complete by now, and the legal and policy reforms to establish an independent complaints and civilian oversight authority should be in place already.
It is unbelievable that the leadership of the police force has not been overhauled in view of these findings. Pending actions include:
* Review of the Police Act and police standing orders;
* Establishing a representative police service commission;
* Launching a modern code of conduct;
* Setting up a statutory Directorate of Criminal Investigations
* Creating civilian oversight on the police.
2. Sexual and gender based violence were pervasive, yet there were no institutions to deal with it at police stations and public hospitals. The commission recommends that a Rapporteur on Sexual Violence (with appropriate powers and staff, reporting to staff) should be appointed to monitor the
work of the Gender Commission and gender units in various ministries, and to provide an annual report to Parliament.
3. The partisan involvement of the Head of the Public Service and the provincial administration in the elections and the violence that followed it call for radical institutional reform that goes beyond changing faces.
4. The Attorney General told the commission that he was waiting for evidence to prosecute perpetrators of the violence. He is too closely linked to the culture of impunity and should be relieved of his duties. The commission recommends the creation of a special tribunal to go round the culture of impunity and the AG. The tribunal will try people first and offer them an opportunity to defend themselves. The constitutional amendment Bill has been withdrawn to insert provisions that accommodate the IREC recommendations. This is also the time to include the recommendations on the
Special Tribunal.
5. The President and the Prime Minister must provide leadership with respect to speed and efficiency in implementation of commission reports, just as they did with regard to the rapid implementation of the National Accord Bill. Parliament must not shirk its responsibility to pass the
following laws as recommended:
a. Special Tribunal
b. International Crimes Bill, 2008
c. Witness Protection Act to be operationalised (can government maintain safety of witnesses)
d. Freedom of Information Bill
6. The Government has the following policy tasks ahead:
a. National Security Policy
b. Conflict and disaster early warning and response systems
c. Joint operations preparedness arrangements
d. Broader participation in the National Security Advisory Council
Our conclusions
1. We are witnessing a situation where the politicians in government are satisfied that they are now sharing power and that it is business as usual. It is disturbing that they prefer to push all issues that contributed to the crisis under the carpet in order to turn such issues into an instrument to access power in 2012.
2. We as Kenyan civil society are certain that the crisis we witnessed is not over. These same politicians will certainly break this country if they go unpunished.
3. We demand the full implementation of the Waki recommendations and immediate disbandment of the ECK. A small team of no more than three people can be appointed by Kenyans to run ECK pending establishment of rules to compose another body.
5. We as civil society are calling on International Community to immediately begin the process of taking perpetrators to the International Criminal Court.
6. We request the International Community not to be complacent or to call this a Kenyan problem requiring a Kenyan solution. These are politicians punishing the rest of the society and refusing to implement these recommendations is not a Kenyan solution.
7. Civil society will soon be contacting the ICC to discuss how to have the perpetrators of violence brought to book.
Signed-
. Africa Centre for Open Governance (AfriCOG)
. Awaaz
. Bunge la Mwananchi
. Centre for the Development of Marginalised Communities (CEDMAC)
. Centre for Law and Research International (CLARION)
. Centre for Multiparty Democracy (CMD)
. Centre for Rights, Education and Awareness for Women (CREAW)
. Coalition on Violence Against Women (COVAW)
. The Cradle-the Childrens Foundation
. Constitution and Reform Education Consortium (CRECO)
. East African Law Society (EALS)
. Fahamu
. Foster National Cohesion (FONACON)
. Gay And Lesbian Coalition of Kenya (GALCK)
. Haki Focus
. Hema la Katiba
. Independent Medico-Legal Unit (IMLU)
. Innovative Lawyering
. Institute for Education in Democracy (IED)
. International Commission of Jurists (ICJ-Kenya)
. International Centre for Policy and Conflict
. Kenya Human Rights Commission (KHRC)
. Kenya Leadership Institute (KLI)
. Kenya National Commission on Human Rights (KNCHR)
. Kituo cha Sheria
. Mazingira Institute
. Muslim Human Rights Forum
. The National Civil Society Congress
. National Convention Executive Council (NCEC)
. RECESSPA
. Release Political Prisoners Trust
. Sankara Centre
. Society for International Development (SID)
. The 4 Cs
. Women in Law and Development in Africa (WiLDAF)
. Urgent Action Fund (UAF)-Africa
And concerned citizens:
* Shailja Patel
* Mary Onyango
* Philo Ikonya
This is so Wrong it is Evil!
By Kikuyus for Change Secretariat: October 30th, 2008
I am watching News, & I cannot believe this. ODM, ODM-K & PNU have closed ranks that no one should be queried as to why Kenyans were killed this year! This is so wrong it is evil! Every ordinary Kenyan must be so annoyed its unbelievable. This is impunity that no one else would get away with & it is especially annoying that it is the people who are supposed to show us the way.
The Waki Report was certainly going to be a challenge for Kenyans, but this is too much-Central Kenya politicians say they were helping protect their people, while Rift Valley MPs say they were fighting for a stolen election & in support of certain leaders who are now in government. Why don’t they want to go and defend these actions in front of a tribunal if what they did was right-especially if it was worth the lives & property of Kenyans, raped women, & children sleeping out in the cold! Why are we trading a few leaders for the lives of our brothers & sisters? Who says our country will grind to a halt if certain MPs or Cabinet Ministers were investigated for the lives lost? Who do we hold account for the over 1,100 people who died, or the over 600,000 people whose lives were completetly destroyed? Why are our political leaders closing ranks to hide evil? Or are we supposed to roll over and move on? What are we telling our children-that violence & murder is justified if you get what you want? Common, these guys are taking us for fools & they are playing with this country’s future!
The reactions of most of these leaders to the Waki Report & especially the arguments they expect us to buy for what happened-and why no one is to blame, are rubbish. Our political leadership is proving to be rotten to the core & it is our fault-people in positions of influence have refused to ask hard questions. The fact is that every time good men and women have refused to exercise the right to hold their political leadership to account their country’s politics have disintegrated and become an evil that eventually destroyed that country, & that is what is happening to us.
A former member of parliament shared an incident where some City Council officers nearly got lynched by members of the public for the simple reason that they were asking his driver to move his car-we have all witnessed how strangers in the street gang up together at the drop of a hat, to violently address perceived injustice-Kenyans the world, there is a lot of anger in this country and it has to do with what happened this year-that no one is telling us why a child was thrown back into a fire in a church, a cripple burnt alive, or a family burnt in a house. We are sitting on a time bomb, and this *#@…. guys do not seem to realize that they are just making it worse! We all know how wrong we can go if we let the ordinary Kenyan loose faith in the law-that they create their own forms of justice.
Whoever has a public platform, or influence in the media, or anywhere, please do not let this pass without a word-tafadhali!
Bernard Orinda Ndege is an exceptional man in his capacity to forgive those who have so grievously hurt him. Early on the morning of January 27, this 56-year old Luo fisherman’s nine children and two wives were murdered by a troop of young men. Chanting war songs and brandishing weapons, they had approached his small two-room house in the Ndigiti neighbourhood of Naivasha. Their intentions in those bellicose days of January were clear. They wanted Luos out of an area Bernard had lived in for thirty years. Fearing the worst, he urged his family and some neighbours to squeeze into his house hoping that the gang would not be able to reach them.
“Leta hiyo petrol, leta hiyo petrol,” the Nation quoted Bernard recalling one of the attacker’s shouts. The attackers barred the door from outside, then they doused the walls of the small house and set it on fire. Bernard and nineteen other people were trapped inside. As the smoke and the heat built up, they must have screamed for mercy, choked on the smoke, felt the heat searing and burning and then melting their flesh. They must have prayed and gripped each other as if to hold on to life itself. Terrified, disbelieving, maybe even feeling his sanity slipping, Bernard, bearing the pink raw marks of the flames on his dark face somehow managed to struggle out of the house to flee in search of assistance. But it was too late.
They lay dead, the children next to their mothers. Bernard recognised them. Mary Atieno Orinda Ndege with her four children: Silas Ochieng, who was turning 18; Alex Ndege, 13; Stephen Ochieng, 5; and the 2-year old last born. Janet Anyango, his wife of 14 years lay on the ground with Hellen Atieno, Dan Omumo, Lawrence Omulo and Kennedy Omondi. She was pregnant, a week away from delivering.
Bernard had come to Naivasha as a young man, had built and supported a family with his modest earnings from fishing in the lake. This was the end of that journey. He told the Nation and the BBC that he was left with one last responsibility. To be their final provider and carer by taking their bodies to his rural home in Karachuonyo for their burial. That act of love, driven by the desire to gain his people and himself dignity, granted their murderers the final foul victory.
They wanted to rid the area of this Luo man and his family who in their struggles to make ends meet, their hopes in their children and all the dreams that come with them, had somehow become part of a vast drama of bitterness and politicking that was not personally their own. Bernard forgave the killers noting that nothing could compensate him for his loss and swore to never to go back to Naivasha. The case according to him was now with ‘God and the government’.
This story arch is appallingly common. From rape in Eastern Congo to genocide in Rwanda and the campaigns of terror in the Rift Valley, there is always a victim, a survivor, who tells reporters that she has forgiven the wrongs done her. She gets lionised as well she should. It is a story that is meant by its media vendors (if we are generous minded about their motives) to demonstrate the resilience of the human spirit and the possibilities of reconciliation where none appears possible. And with men and women like Bernard such magnanimity is possible to believe in; they seem to point us toward a brighter dawn after an unimaginably dark night.
We witness them stagger painfully under a load that most of us cannot imagine, before they rise shakily to their feet and make for a distant point in the horizon that we call hope and goodness. But, alas, they must be burdened with more. They must carry the self-serving agendas of ‘forgiveness’ for the rich and powerful who have driven our countries deeper into the grip of the cynical and destructive political kingdoms that we inherited from a distant colonial master.
On top of the pain of our Bernards and the destruction of their lives is heaped one last duty. To help us hide from our responsibility, to allow us to turn away from our need to take courage and strike out at the destroyers and thieves to whom the lives of nine children and their mothers is a price they are willing to pay to hold on to their ill-gotten gains. It is an obscenity to willfully conflate Bernard’s personal forgiveness with how we need to respond collectively. It is woefully insufficient to act as if the killers of his family were acting out personal pathologies when they were in fact pursuing a political project. To confuse this fine man’s expansive spirit and faith in God’s justice with political reconciliation is to get it very wrong, dangerously so.
Bernard has sworn that he will never go back to Naivasha and placed his earthly case before us. It means that the forgiveness he extended the killers is not the end of the matter. It is merely the act of a man who understands that personal vengeance will only add to his ills, and by this understanding asks we deliver a justice that will leave him psychologically whole. His act is not generous in the sense that he wants to soothe the conscience of the killers (and their sponsors) nor is his new life in Oyugis a sign that we are ready to march onward as if what happened on that morning in Naivasha is behind us.
Rather, Bernard is calling out to his God to deliver on his promise of heavenly justice, to repair and make whole the battered spirit. From us – yes us because government is nothing but an assembly of individuals that we have chosen – Bernard demands we deliver on the promise of Kenyan lives as sanctified by the bitterly earned right of citizenship that underlies our struggle to forge a nation. If Kenya is indeed a commonwealth and not a jungle of all men versus all men, where flames lick at the flesh of the innocent while their killers gorge themselves on roast meat, then Bernard needs to see justice done here on earth.
What of the killers of his family? What is the relation between their individual act of murder and the political project that they and their bosses were pursuing?
They may be racked with a crippling guilt but the turning of their personal universe does not address the rupture that they have caused to the broader values of community and nationhood. Their sin is at once personal and social. They may fall on their knees and bang their foreheads on the ground to expiate the former but we, as a collective of people, are forced to respond to the latter. How does an entire country go to its knees to ask forgiveness from Bernard and his family for having produced and stoked the political equation that visited him in January?
Surely the answer is that it is not enough for the president or the prime minister or even Nelson Mandela to express apologies from a dais. Surely it makes intuitive moral sense that workshops and speeches on the need for ‘forgiveness’ are not sufficient. Especially because Bernard has already taken that convenient arrow out of our quiver. He has forgiven, so what is left to us but to pursue that call of justice that he forthrightly lay at our door?
If Kenya is to proceed without the lethal cancer of January in its belly, ever crippled, greedily attempting to live a false peace on the back of a worn Bernard and his personal courage, we should eject the word amnesty from our conversation. To our ear it should sound like the crackling of flames and the screams of pain that rent Kenya in January. Amnesty for the powerful should look like a panga dripping blood or the televised police shooting of young men in Kisumu and Nairobi. Bernard has done his bit for his soul. Will we do ours for the soul of Kenya?
Where Bernard forgave personally, we need to resent politically. His faith in God and us is strong enough that it should give us pause to betray it. We should refuse to forgive those who killed his family and the people on whose behalf they acted. To love him, and surely that is what we most feel for him, is to resent them and that part of us that allows them to be our leaders.
We can express these sentiments concretely by insisting on the creation of a strong tribunal based in Kenya that draws on the Waki recommendations. We can use our respective bully pulpits – professional associations, church groups, unions etcetera – to tell our MPs and ministers in no uncertain terms that to protect the highest perpetrators of the PEV from standing trial will destroy their political careers.
Should we however attempt to mirror Bernard’s personal magnanimity with a public one, we will be spitting on him and those who were victimised in January and years past. It would be to go the way of communal cowardice, cursed to repeatedly burn more homes and vote for more criminals. We are called to resist amnesty because it is what is humane and honourable. It is the call of our better natures and our only lasting national hope.
Martin Kimani
STATEMENT BY THE ORANGE DEMOCRATIC MOVEMENT (ODM) ON THE REPORT OF THE COMMISSION OF INQUIRY INTO POST ELECTION VIOLENCE – 30th October 2008
75 members of the ODM Parliamentary Group having met today, Thursday, October 30th, 2008 in the Old Chamber of Parliament under the Chairmanship of the Party Leader, Rt. Hon. Raila Odinga has resolved as follows:
1. ODM reiterates and re-affirms our official position that we were the aggrieved party in the mishandling of the 2007 General Election and its violent aftermath. Accordingly, no case of pre-meditation can rightly be brought or sustained against any member or leader of ODM. Our party had been pre-occupied with preparations to celebrate imminent electoral victory and therefore had neither the motive nor the time to plan violence in the aftermath of a definite electoral triumph.
2. Persuaded by the substantive advice of our team of legal experts that has found inherently incurable errors and fundamental constitutions [sic] contradictions in considerable sections of the Waki report; and motivated by the imperative of upholding the rule of law, the Sovereignty and Constitutional integrity of our land, ODM has resolved to reject the Waki report in toto. This position is informed by several fundamentals, including the following shortcomings admitted by the Waki Commission itself in its report:
“The Commission…relied heavily on the testimony of public officials in its hearings…The Commission espouses the rule of law and is guided accordingly in the discharge of its mandate. One of the fundamental principles of law is the application of the rules of natural justice in the adjudication of disputes. The other is the presumption of innocence. And one of the rules of natural justice, which the Commission jealously guards, is that no one should be condemned without giving them an opportunity to be heard. Pursuant to this principle, the Commission hoped that it would have an opportunity to service [sic] all individuals adversely mentioned during its inquiry with notices of such mentions and grant them an opportunity to record their evidence with the Commission. For this Commission that opportunity never arose for a large number of adversely mentioned persons except for a few who came before us. Even in these cases, it would still be necessary for the Commission to carry out further investigations before naming names to verify all the material facts. The main reason why this threshold was not met is that the time allocated to the Commission to complete its task was extremely limited; it was in fact far too short to contact and hear the side of all those who had been adversely mentioned during the Commission’s hearings. Also on some cases the contacts and addresses of the named persons were unavailable…”The evidence the Commission has gathered so far is not, in our assessment, sufficient to meet this threshold of proof required for criminal matters in this country; that it be “beyond reasonable doubt”. It may even fall short of the proof required for international crimes against humanity…”
These excerpts from the Report make it crystal clear that:
• The rules of Natural Justice were not followed before the recommendations were made either in respect of adverse allegations or steps to be taken against persons purportedly named;
• There was no fair hearing or due process in respect of arriving at the determinations or recommendations against persons purportedly named;
• No protection of law was afforded in respect of the conduct of CIPEV proceedings particularly in regard to the applicable law including the Commissions of Inquiry Act;
• The provisions in the Constitution on the protection of the presumption of innocence were undermined by CIPEV;
• The provisions of the Constitution safeguarding human dignity and the protection of reputations of persons were violated;
• Contrary to section 3 of the Commissions of Inquiry Act, persons purportedly named were not given any reasonable or real opportunity to confront the evidence adduced or material presented against them;
• Hearsay evidence and expressions of opinion adversely affecting the reputations or reflecting upon character or conduct of persons was received contrary to the Commissions of Inquiry Act, the statute under which the Commission was appointed; and
• The evidence affecting the reputation and character of persons affected was not communicated to the said persons before the evidence was received nor was prior warning given.
In the light of the above considerations and the fact that CIPEV was a non-judicial Commission, ODM declares or states as follows:
a) Names of the persons and the envelope presented to H.E. Kofi Annan must not be subject of any judicial or quasi judicial and/or investigatory process or proceedings within or outside Kenya’s jurisdiction.
b) CIPEV having failed to present the names of persons in the envelope to the appointing authority in accordance with its mandate (the citation contained in the Kenya Gazette No. 4473 of 22nd May 2008) cannot cause any further steps to be taken by the appointing authority in exercise of any powers under the law and any investigation or indictment based thereon is ipso facto unconstitutional and illegal.
c) ODM being part of the Grand Coalition Government will resist and stop any “rendition” or surrender of Kenya’s citizens to a tribunal outside its territory as the national jurisdiction and/ or national systems have not collapsed and it is not demonstratably [sic] evident that Kenya is unwilling or unable to carry out investigations or prosecutions in our courts. Without evidence of a breakdown of judicial systems in Kenya CIPEV has blatantly overlooked the principle of complimentarity which underpins the ICC. The ICC cannot supplant or replace the functions of national courts and other relevant institutions.
d) CIPEV overstepped and misinterpreted its mandate by ostensible identifying persons in its report and imposing an unreasonable timeline for the implementation of its recommendations.
e) The process of setting up a tribunal envisioned by CIPEV is flawed ab initio and cannot be implemented as persons for whom the proposed tribunal is being established have been condemned unheard. The judicial process will have no integrity in terms of accepted universal judicial standards.
3. Finally, we re-affirm our commitment to sustain and strengthen the unity of our party and re-dedicate ourselves to continue working in the best interest of national healing, reconciliation and unity.
[as read by Ababu Namwamba, Secretary of the Parliamentary Group of the Orange Democratic Movement Party on Thursday 30th October 2008]
In excess of 1300 persons perished and over quarter million others will carry the marks of shattered hopes and terminal devastation!!!
Today, as we speak about forgiving the perpetrators of that deadly violence, do we forget the thousands of innocent under 18’s who have to sit end of year exams in camps? We seem to not think about the new ethic community called IDPs that was sired by the post election violence. (Mungu tu ndiye awasamehe hao watu).
It’s surprising that some of those asking us to “go slow” in administering justice to the planners of the organized crime had at one time condemned the killings as an abuse of human rights. Look, perhaps we are yet to see the last of our politicians.
Apart from those killings, biashara (maduka, magari, mashamba n.k) ziliteketezwa, reli zilikatwa Nairobi, mradi wa maji ulichomwa Kisumu, gharama ya maisha ilipanda kisha mwataka tusamehe waliotuchochea??? Haya, sisi ni wanyonge! Wakubwa ni nyinyi…
Lakini najua Rais Kibaki na Waziri mkuu Odinga wana nia njema na roho zao hazitatulia iwapo hii ripoti ya Waki haitatekelezwa. Jambo kuu ni hao wanasiasa wasaidiwe kuona makosa yao ili wajitolee kujibu mashtaka ndio wapate fursa ya kuomba msamaha…
Sasa tumeanza kuona kumbe zile siasa za mwaka jana zilikuwa tu za walio wachahe kunyakuwa madaraka wala si kwa ajili ya maslahi yetu sisi tulio wengi.
Hi,
They have done it again.they have all agreed to water down the report.is it not them (ODM & PNU) who chose waki and the other commissioners asying they trusted them.
so my fellow youth what we said at bomas(fighiting the system is the only thing that will liberate this country. Raila, Ruto, Kibaki, Michuki etc are just protecting each others interests. we need to join as youths and transform Kenya.
it is so sad that the nyc conveners who have the platform have not stated their position on the developments surrounding the release and rejection of the waki report by the so called Kenyans.
which Kenyan has rejected the waki report if not the useless politicians who brand themselves peoples spokespersons without first consulting.
Let us ignore the tribal chiefs and chart a new political dispensation for our beloved country.
Rome, Brussels – 31 October 2008
Since the eruption of violence following the announcement of the results of the Presidential elections in Kenya in December 2007, Kenya has embarked on several measures as part of an accountability process designed to address the crimes committed in Kenya from December 2007 to February 2008.
These measures have included a wide-scale investigation, conducted by the Kenya National Commission on Human Rights with the technical assistance of No Peace Without Justice; the “Kriegler Commission”, established to look into allegations of electoral irregularities; and –most recently- the “Waki Commission”, a Commission of Inquiry into the Post-Election Violence, which released its report on 15 October 2008. They have been complemented by parallel legislative reform efforts, including the enactment on 23 October 2008 of the “Truth Justice and Reconciliation Commission Act”, establishing the TJRC, and ongoing discussion at the Kenyan Parliament and elsewhere of the “International Crimes Bill”, to implement Kenya’s obligations under the Rome Statute for the International Criminal Court.
The accountability process in Kenya suffered a set-back on 30 October 2008, with the Orange Democratic Movement (ODM) statement of its resolution to reject the Waki Commission Report, despite ODM party leader Prime Minister Raila Odinga’s support for the Report and implementation
of its recommendations.
Declaration by Sergio Stanzani and Gianfranco Dell’Alba, President and Secretary-General of No Peace Without Justice:
“Perhaps more now than ever, Kenya stands at the crossroads between moving forward to a peaceful future where the root causes of this latest round of post-election violence have been eliminated, and being doomed to repeat the tragedies of the past, if the cloud of potential impunity that hangs over the country is not avoided.
“The Independent Waki Commission, established as an integral part of Kenya’s political powersharing
agreement, has spoken. On behalf of the Kenyan people, they have said very clearly that there must not be any reward for violence and that there must be an accounting for the devastation wreaked on Kenya earlier this year. Now is the time to put action to those words: redress for the victims during the post-election violence and an accounting from those responsible for that violence must not be held hostage to personal or political agendas.
“As Kenya waits and watches to see what happens next, Kenyan NGO leaders have called on the international community to provide much-needed support for implementation of the Report’s recommendations, including the establishment of a special tribunal to seek accountability against those who bear the greatest responsibility for crimes committed during the post-election violence.
“No Peace Without Justice stands by our Kenyan colleagues and echo their call. We urge the international community, and in particular those involved with brokering the deal that resulted in the establishment of the Waki Commission, not to abandon the people of Kenya but to provide whatever
support is needed to ensure prompt implementation of the Waki Commission Report.
“No Peace Without Justice also urges Kenya’s Parliament to pass, as soon as possible, the International Crimes Act. This is critical, not only for the special tribunal, which should apply the International Crimes Act, but also for fulfilling Kenya’s international responsibility as a State Party to the Rome Statute of the International Criminal Court.”
For more information, contact Alison Smith, Coordinator of the International Criminal Justice Program, on asmith@npwj.org or Nicola Giovannini on ngiovannini@npwj.org or +32 (0)2 548-3910.
i ask myself several question where are we heading? there are questions that are still pending lets take for instant, Arturs margarians saga nobody have an idea of what happened. Government has failed us.
Dear Heroes and Patriots of this great nation.
I hope this mail finds you well.
I call you heroes and patriots because I believe in the strength that lies in us. I believe in the wisdom and courage that we all hold. And I know that this nation can be better and will be better at any moment that we decide to make it so. We have spoken at times when many fear to do so. We have offered hope to this nation when the old hyenas are busy tearing it apart. In our great numbers we have defended the independence of this nation; in most times, armed with nothing beyond our bare chest. We have paid the ultimate price, to the extent of exchange with our own lives. That is the courage that has kept this nation moving; the courage that dwells in our voice when we speak and our actions when we act.
I have been keen on the opinions and comments that are being made since the launch of Waki Report. The political class as usual has made itself busy, making false statements with no directions, opening their mouth without caution; practicing their usual culture of impunity. And we have yet allowed it to happen under our watch. What a shame!
Raila and Kibaki have failed this nation. I may forgive Kibaki because I gave up on him several years ago when he failed to curb Anglo-leasing, failed to give us a new constitution, and failed to appreciate our democracy through clean election and respect of the power of our vote. But am shocked with Raila. Is this what small power can do by making him to forget so soon of the wishes of Kenyans?
Raila has shown us that he can not take a national stand and is now reduced into prisoner of his political party. His interest has shifted from nation to individual. His focus has changed from justice now to politics 2012. So he has chosen to listen to a gang of some narrow minded MPs who thinks that they control our vote and voice by the virtue of their regional belonging.
So those who were orphaned widowed, raped, hacked to death; the children that were burnt alive, the innocent Kenyans whose heads and torsos formed a human road block along our highway can still not access justice. Burnt houses, bleeding nation and down trodden internally displaced persons are not symbolic enough to silence the interest of our political class. Today, the Collusion Government has shown us that the poor lot can never enjoy justice in this nation. They are shocked and disappointed with Waki, because they believe that he is a liar. They believe that he never did his job well by protecting to protect them most.
And now that the political class have colluded to silence our voice, what do we intend to do? We are known to forget so fast and sometimes not interested in matters that do not concern us as long as we have bread on our tables and a pay cheque at the end of the month. Is this the road we intend to take? I hope not.
The nation is at crossroads, and it needs leadership so urgently like now. In all of us lies a leader. In all of us there is a voice that convinces us that we can do something. There is a voice in you and me and there is a conscience too. We have spoken on the internet, written and read in papers, but now is the time that we must act. We must save our generation and generations to come from the exploits
of the political class.
We must strive to ensure that justice is availed to all. And we must stand up to show our leaders that this nation belongs to all of us all. Where are the Pio Gama Pintos’,the Dedan Kimathis’, the Mwalimu Matis’, the JM Kariukis’,Wambui Otienos the Martin Luthers’, the Mahatma Gandhis,’ Patrice Lumumbas,’ the Steve Bikos and the Nelson Mandelas’ among us must stand now for this nation.
We must start a national campaign against the interference on Waki Report by our political class. We must show dedication and will to sacrifice with all our best for this nation to sprout and spring with plenty and abundance of justice.
Waki Report provides us with the best opportunity to make change a reality in our nation. We must corner the deceits and lies of our political class and demand truth, justice and permanent end to the culture of impunity.
I therefore submit this mail to you with a request that if you feel and convinced that you can be that change that can stand and be counted, then get back to me. Let us plan to offer leadership to this nation, by taking a step to push for implementation of Waki Report.
Let us reach as many people as possible. And let us be convinced that when we are right, we have nothing to fear. Wangari Maathai stood up for the trees and land grabbing, so we can stand for the people of this nation.
As young people who attended the Fourth National Youth Convention, I feel that it is a high time we organize ourselves into a force of change and show our leadership through expressing our disappointment with this government by getting involved in Active Non- Violent Activities, protests and engagements.
Comrades,
I’m perturbed. Disturbed. Worried. I can’t imagine waking up in such a
country. 40-plus years and we still have people in the name of politicians bold, courageous and brave enough to entertain such thoughts. And we keep and continue paying allegiance to them. While I condemn the thoughts (let alone the utterances) of the politicians, I write to not only condemn the youth of this nation for entertaining this and created the environment where such stuff are conducted but also sound an alarm bell to them (youth) that the only hope remaining is not just in them but THEM! This issue not only needs to be given the needed attention but calls for an emergency sort of treatment. Guys, this is an emergency, it’s like a baby in the birth canal, it can’t wait. No! it can’t.
The first action I call upon all the youth to take is to avoid all meetings or gatherings planned by the Anti-Waki Report implementation guys. Let them talk to themselves. And if you are a youth out there still with demigod politicians you are condemned not only by the current youth generation but also by the generation to come. Shame on you!
Action number two: It is a warning! Many a times our (youth) actions are pretty predictable. While we draw immense lessons from our heroes/heroines(as touched on by GPO) we need to carefully and wisely choose the action which will herald a new leadership era. Lets count this an opportunity to take charge. Oh! and before I forget, I remind you we are in charge. For if the challenge facing our nation will be addressed by you and me, then no bigger or better leadership is needed the world over. The worlds only remaining resource is its youth. What is needed now is what I would call *leadership unusual. It’s time for crucial conversations and crucial confrontations. *This will only be offered by you and me. The time is overdue.
Let us be responsible and reliable. Let us learn, unlearn and relearn, for this is the literacy of the 21st century.
Munish.
We should not be shocked by what’s happening, all these politicians are protecting their own interests. Where is the call for amnesty for the youth they used then, the amnesty they are talking about now is for them.
Malcolm X would have said: There’s no difference between the ODM ‘fox’ and the PNU ‘wolf’. One is prepared to frighten the people so badly that they will whole heartedly embrace the sly fox to escape the fangs of the wolf.
There is much we can do to end the culture of impunity, but we the ordinary citizens should first end impunity amongst ourselves. Many a time when one is arrested what do you do? If you will not threaten the police with words like “do you know whom you are arresting!!!!!!!!” Then you bribe your way out, and this is where our impunity begins, so before we finish all that, we will always live with it 100 years down the line.
But lets stand up and defend the Waki Report, however shoddy it is!!!!!
Fellow Kenyans,
I call you fellow Kenyan because it is you and me who are and neither Kibaki, Raila nor their associates in the political elite can be fellows with you. They only qualify to be fellow Kenyans when they want me to dare you and/or yours with rungus, pangas and all other assorted arms for their personal and political interests. A culture that has been theres for use on their benefit. A culture that has been drawn to Kenyans since time in my memory and a culture that we must now stand up and
refuse to inherit. The culture of IMPUNITY.
I will be with you and GPO when we get out of the internet and phone calls to the open. Where the world will see that we fight for a better place for a nation that is the mother to thousands who were killed, raped, burnt alive and who’s rights have been violated by an elite group that doesn’t qualify to be within. We must stand up and avoid in 2012 and forever in Kenya what Judge Kregler called “……events of last January and February will be like Chrismas time”.
Fellow Kenyans, We must be counted as a people who refuse the Anti-Waki eloquence.
These reports (Waki & Kregler) should and must be implemented to the letter!!
However, its nobody else to do it but you and me and today or never again! We must walk the talk or we perish (as a nation) to oblivion. We must wake up and accept to die a honorable, heroic, and a justifiable death. Death to save the future from corruption, rape, arson, murders, political expediency, sentences without trial and all the other injustices. We may all be negroes but lets act like we are field
negroes, neglected, misused and misled negroes.
We must come to the open and tell the political class, “we are tired of your leadership and you don’t deserve to be led either”. A tribunal may be good but better still is The Hague.
Wake up Kenya!!
A SNEAKY ATTEMPT TO MAINSTREAM THE ABNORMAL
===================================
Okay, with due respect to the CSO’s Statement over the non-implication of the Waki Report, may I now point out the outrageous attempt by the same CSO’s to sneak in another agenda which has nothing to do with the Waki report or the post-election violence.
We might be very angry as Kenyans right now regarding the betrayal by the political class, but we are not blind to the agendas of some lobby groups attempting to mainstream themselves using the suffering of Kenyans.
Am referring to the: Gay And Lesbian Coalition of Kenya (GALCK), listed under the CSOs signing the statement. Pleeeease!
For goodness sake, when did we start recognising advocates of sexual depravity as civil society representatives?
Am not losing sight of the fact that the post-election violence concerns all Kenyans of good will, but is this an excuse to embrace every shenanigan that is thrown our way by the West?
This underhand and sneaky inclusion into the list of CSOs smacks of a deliberate effort to give the homosexual lobby a subtle stamp of approval and legitimacy in the eyes of Kenyans.
Our laws are frankly, quite clear on the illegality of homosexuality in the Republic of Kenya. Why are we tolerating lobbies that are intent on propagating a lifestyle that has been shown in the west to be severely unhealthy, morally corrupting and politically intolerant to long cherished family traditions and beliefs.
Whom are we kidding? That a group of people can claim their position as a ‘minority’ group based on a changeable sexual behavior?
Would we tolerate a ‘Thieves & Robbers Coalition of Kenya’ (TRCK) as a CSO concerned about the legitimisation of criminals who were ‘born that way’?
Would we tolerate a ‘Marijuana & Cocaine Users Coalition of Kenya’ (MCUCK) advocating for the legitimisation of drug use for ‘responsible’ and ‘mature’ Kenyan youth?
Let the people behind this Homosexual Kenyan movement now realize that there are citizens who are keenly aware of their underground activities, and will quickly expose their activities to prevent a farcical descent into the gay shenanigans we see in America and Europe in recent times.
You cannot normalize the abnormal.
Kindly keep your perversions to yourselves, or better still, seek psychological help for your condition.
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