This final article in the series attempts to look at if it even matter if the ICC Prosecutor, Luis Moreno-Ocampo, relied entirely on the Waki Commission and Kenya National Commission on Human Rights reports for his evidence. An argument can be made that the Office of the Prosecutor does not have all it needs to run full-scale investigations into something like the violence that happened in Kenya because it engulfed almost the entire country. More importantly, those reports are backed by Kenyan law, giving them more weight than investigations done by other independent organizations.
The Waki Commission was formed as a part of the peace settlement that ended the violence. Further, it was formed based on the Commissions of Inquiry Act. This law allows Kenya’s president to form ad-hoc, short-term investigative panels to advise him on possible actions to be taken on an issue of national importance. The law is framed in such a way that a commission can have wide-ranging powers to enable it gather the information it needs. It also allows a commission to conduct public hearings where sworn statements are taken, with the implication that a commission can take someone to court to be charged with perjury if their testimony is false. This is rare because most of the commissions that successive presidents have formed have had a short existence of three to six months. There is also the fact that by their nature the commissions are political tools and members may have also weighed the need to fulfil their mandate against pursuing a perjury case through a lethargic judiciary.
In the case of The Commission of Inquiry into Post-Election Violence, it had a Kenyan judge of the Court of Appeal (the highest court at the time the commission was formed) as its chair, a New Zealand retired police officer, and a Congolese human rights defender as members. It took sworn statements from a cross section of society ranging from high ranking officials, such as the prime minister, the military chief, and the intelligence chief, to victims. That in itself was a first because it is rare for the military and intelligence chiefs to be examined and cross-examined in public as happened with the Waki Commission.
The Kenya National Commission on Human Rights, whose name has changed with the constitution that came into force in August 2010, has a similar legal standing. Before August 2010, its anchors were the Kenya National Commission on Human Rights Act and the Paris Principles, to which Kenya is a signatory. That Act of Parliament makes the Commission a creation of the state with funding from the government but requires the National Assembly to vet nominees as part of mechanisms to give it autonomy and independence. The law gives the chairperson the status of a Court of Appeal judge and commission members the status of a High Court judge. The commission has broad powers to go where it wishes in its search for information on human rights violations, including government mortuaries and police stations.
Some politicians and their supporters have criticized the Waki Commission and KNCHR reports, questioning the credibility of the documents. These arguments have been designed to side-track people’s attention from the real issue: until the ICC got involved, none of the alleged masterminds of the post-election violence had been charged in court. In addition, the ICC only intervened after the government and National Assembly failed to form a robust and independent limited-term tribunal to handle post-election cases. Parliament voted against setting up a local tribunal in February 2009, a vote that was following a timetable set out in the Waki Commission report that the legislature had adopted.
The two reports make up the most comprehensive official investigation into political violence in Kenya and that too at break-neck speed. They were completed within eight months after the violence ended. Before these reports, the most comprehensive official investigation into political violence in Kenya took a year to conclude and the resulting report was only released to the public two years after it was given to then President Daniel arap Moi. This was the Judicial Commission of Inquiry into Tribal Clashes in Kenya that investigated the pre-election violence of 1992 and 1997. It concluded its work in 1999. However, when the government made the report public in 2001, the then attorney general openly criticized it. Then not much else was heard after that – not even an effort to clear the names of people mentioned as individuals who should be investigated further for their suspected roles in the violence.
The term “further investigation” in official reports is often a euphemism for “these individuals should be prosecuted,” but because the reports’ authors do not have prosecutorial powers they phrase their recommendations that way. Therefore, a prosecutor can take such recommendations, analyse which ones stand the best chance of success in court, and work towards framing such cases.
The ICC prosecutor has followed up and developed two cases that he is arguing before Pre-Trial Chamber II. The Waki and KNCHR reports, however, encompass much much more than the violence in North and Central Rift that the ICC prosecutor is focussing on. So what is stopping Kenya’s newly independent director of public prosecutions from focussing on the more than 214 individuals listed in the KNCHR report that the ICC prosecutor has chosen not to take to court and analysing afresh what cases stand the best chance of success in court. Is there nothing worth forming a case or cases from the wealth of information in the Waki Commission report?