International Justice Monitor

A project of the Open Society Justice Initiative

Waki Commission Member Testifies in Ruto and Sang Trial

A member of a commission appointed by the Kenyan government to investigate the violence that followed the December 2007 presidential poll told the International Criminal Court (ICC) that the official figure of the number of people displaced by the violence was lower than the figure the commission came up with.

Gavin McFayden told the court on Thursday that one reason for the discrepancy was that the government figure only took into account people who fled the violence and sought refuge in camps. McFayden said there were others who went to what he called their home areas or districts or made alternative arrangements away from the camps for the displaced.

McFayden began his testimony before Trial Chamber V(a) after it resumed hearings in the trial of Deputy President William Sameoi Ruto and former journalist Joshua arap Sang. Ruto and Sang each face three counts of crimes against humanity for their alleged roles in the bloodshed that took place between January and February 2008.

A former Assistant Commissioner of Police in New Zealand, McFayden was one of three members of the Commission of Inquiry into Post-Election Violence. McFayden served in New Zealand’s police service for 32 years and conducted criminal investigations for a significant part of that time. The commission he served in is commonly referred to in Kenya as the Waki Commission, after the Kenyan Court of Appeal judge who chaired it, Philip Waki. The other member of the commission was a Congolese human rights activist, Pascal Kambale. The commission conducted its investigation between June and October 2008, when it submitted its report to the government.

McFayden said the government figure for the internally displaced was more than 200,000. He said this figure was given to the commission by Francis Kimemia, who at the time served as the Provincial Administration and Internal Security Permanent Secretary. The commission concluded that about 350,000 people were displaced by the bloodshed, said McFayden. He said the commission factored in people who had fled violence but who did not go to camps the government had set up for them.

McFayden said that the commission did not adversely name anyone in its report because of the limited time frame they were working with. He said they did receive testimony in which some people were adversely named. He also said that Ruto and another politician, Franklin Bett, did ask to testify before the commission and the commission gave them a hearing.

Part of McFayden’s time in court was spent identifying and explaining documents generated by the commission or given to it in the course of its work. Some of the documents were the commission’s rules of procedure, gazette notices, and sections of the commission’s final report. Lawyers for Ruto and Sang did not object to most of the documents being entered into evidence, but in some cases where they raised objections, the chamber overruled them.

McFayden also explained some of the workings of the commission, including how it recruited staff, conducted its hearings, and selected individuals who were to give oral evidence. He said the commission heard the testimony of more 150 people, but the number of statements the commission recorded was much higher than that.

McFayden will continue testifying on Friday.

3 Comments
  1. The prosecutor has ran out of ideas/witnesses. Now she is getting back to commissions which gave her the alleged full prove case against the accused. Why didn’t she stick to her own investigation or does this mean the commission on stand is a branch of ICC prosecution?

  2. Perhaps this witness could speak on the contents of the mysterious sealed envelop just for information’s sake. How may names were in that envelope?
    Who were they?

    he could also speak on how the envelope ended with Kofi Annan. This is a moot point. But for clarity it would be interesting to know how the decision was made. The commission was appointed by President Mwai Kibaki. To report back to him. But it seems to have given him one report and Kofi Annan another? Is this true? Kofi Annan seems to have had a local team working for him. Who were they? How were they picked? How about South Consulting?

  3. We are Kenyan an indipendent country. Any one who interfere with our business without adhering to our own constitution will definitely be ashamed. We elected them to lead us can’t Bensuda learn that they are our best leaders. Waki commission was plot to keep them out of leadership and it failed. The whole ICC lot is defeated.

Post a comment

Comments are moderated and may not appear immediately.
See our Terms & Conditions and Privacy Policy