The Commission of Inquiry into Post-Election Violence (CIPEV) established to investigate the violence witnessed after the 27 December 2007 elections in Kenya officially presented its much-anticipated report to President Mwai Kibaki and Prime Minister Raila Odinga on 15 October 2008. The CIPEV, or Waki Commission, was vested with a mandate to ‘investigate the facts and circumstances surrounding the violence, the conduct of state security agencies in their handling of it, and to make recommendations concerning these and other matters.’
A key recommendation of the Waki Commission is that those responsible for committing the most heinous crimes during the post election period should be prosecuted. In this regard, the Commission has recommended the creation of a Special Tribunal for Kenya (STK) to ensure an objective and apolitical justice process. This recommendation has caused a major stir in Kenya, both within and outside political circles. Many people are truly concerned that pursuing justice at this time might unhinge Kenya’s tenuous peace process. Others are worried that failure to end impunity will fuel revenge, and possibly reignite the conflict.
However, at over 500 pages, the report is not easy to digest for most Kenyans. And considering the vital importance of its contents, commentators and analysts are working hard to distil the key recommendations into an accessible format. Looking at the implications of the report in relation to the establishment of the STK, it is important to understand the following key points.
First, the recommendations relating to the STK are to be implemented under the auspices of the Panel of Eminent African Personalities (PEAP) who mediated the creation of the Government of National Unity (GNU) in consultation with the president and the Prime Minister (the Principals). While the role of the PEAP and former UN secretary general Kofi Annan in particular, may keep the two principals focused on its implementation, their view will in no doubt be coloured by the politics of the GNU.
There is already a bitter debate on whether prosecutions should be conducted. The president’s political party, PNU, which originally advocated for prosecutions without reservation (while the prime minister’s ODM called for amnesty), has since changed position. Some high-ranking members of PNU have allegedly been named by the Waki Commission. While the views within the president’s party are not unanimous, the president himself has called for forgiveness, sending an early message that he would not support prosecutions. Within the prime minister’s party, some, while perhaps sensing an opportunity to ‘fix’ their named opponents within the party, have begun advocating for prosecutions. It is therefore clear that there remains the risk that the STK may be manipulated to target individuals within and across party lines.
Second, the STK, which will sit in Kenya, will prosecute ‘persons bearing the greatest responsibility for crimes, particularly crimes against humanity.’ The STK shall apply Kenyan law and the new International Crimes Bill (which is meant to incorporate the Rome Statute of the International Criminal Court (ICC) into Kenyan law). In what appears perhaps the weakest element of the recommendations regarding the STK, the Commission made no attempt to explore what is meant by ‘crimes against humanity’, except for its rather cursory intimation that some of the attacks were ‘systematic.’ By failing to engage this issue, which lies at the core of its recommendations, the report opens itself up to legitimate concerns about its vagueness on key issues, which could in turn lead to implementation challenges.
The Commission itself warns that the evidence collected may indeed not meet the standard of crimes against humanity. If these views are correct, then the Commission’s recommendation for prosecuting crimes against humanity, and indeed the very establishment of the STK – and possible involvement by the ICC – could be problematic. The Commission has recommended that the ICC should be engaged to prosecute should the STK fail to do so. It is notable the ICC Bill under which these crimes are to be charged is not yet law. When that happens and it is applied to the STK, it will meet constitutional attacks for retroactivity. In terms of the Kenyan constitution – and indeed international law – one cannot be tried for acts that do not constitute crimes (under national law in this case) at the time they were committed.
Third, the CIPEV attempts to remedy the inertia likely to be brought about by political considerations such as those mentioned above by imposing a ‘roadmap’ to be followed from the time the report is handed to the Principals to the establishment of the STK. The report states that the Principals are to sign an accord agreeing to establish the STK within 60 days of receiving the report. A statute for the STK should be enacted within 45 days of that signature. The president is to assent to the statute within 30 days of the relevant Bill being passed by parliament. If the recommendations stand, the tribunal should be in place on 28 February 2009. The clock started ticking on 15 October, and most commentators seem unsure whether the government will be able to get everything in place on time.
Fourth, the Commission recommends that should the government fail to establish the tribunal and implement the prosecution-related elements of the report, that the ICC should handle the prosecution of the listed individuals. This is understandably one of the most contentious aspects of the report. Moreover, there seems to be a general lack of understanding about how the ICC works among politicians and commentators. The Waki Commission itself, by suggesting in its recommendations that ICC involvement would be automatic if the STK fails to take off or is subverted midway, demonstrates this lack of understanding. One clear misunderstanding relates to the jurisdictional triggers of the ICC, namely government referral, UN Security Council referral or ICC Prosecutor initiated investigations. None of these seem likely considering the current political climate in Kenya, the UN Security Council’s position, and the record of the ICC Prosecutor on self-referrals. The Commission’s suggestion that the PEAP hand over the sealed envelope and evidence to the ICC if the STK fails would not amount to a government referral either, and would simply be a source of information for the Prosecutor on the basis of which he may commence investigations.
Fifth, the Commission recommends that while applying Kenyan law, the STK should have an international component – marked by the presence of non-Kenyans on the senior investigations and prosecution staff. Further recommendations are made with respect to appointment of judges, division of chambers and independence of the tribunal.
Sixth, the Commission did not make public the names of senior politicians (both from the president and prime minister’s party) and businessmen implicated in crimes. The sealed envelope, which also contains evidence, has been entrusted to the custody of the PEAP pending the establishment of the STK. The names and evidence will be handed over to the ICC Prosecutor if the STK fails to proceed to operate as stipulated or is subverted.
Whether the Waki Commission’s recommendations on the STK will be implemented remains to be seen. However, initial indications are that the fragile GNU faces complex challenges in trying to comply with the recommendations. The stakes of failure are high, especially if one considers the risks that a lack of justice can pose for durable peace in a fragile process like Kenya’s. Ending impunity in Kenya is perhaps more important now than ever before.