Makau Mutua
28 August 2008
Nairobi — The history of commissions of inquiry in Kenya has not been a happy one. Indeed, one would not be incorrect to assert that such commissions have generally been used by the state to sweep scandals and matters of national importance under the proverbial rug.
That is why I was initially skeptical about the effectiveness of the Commission of Inquiry on Post-Election Violence, now popularly known as the Waki Commission.
The problem has not been with the personnel of commissions of inquiry per se, or even the institution itself. Rather, the major stumbling block has been the refusal by the state to carry out the recommendations of such commissions.
Findings ignored
One can think of several really famous commissions that were either upended, or had their findings ignored by the state. The Goldenberg Commission is perhaps the most important one in recent memory.
After theatrical revelations about illegal midnight calls from State House and other melodramatic nuggets about corruption in high places, the whole matter died an ignominious death.
The report of the Akiwumi Commission on so-called ethnic clashes is still gathering dust today. Then there was the Gicheru Commission formed to unravel the brutal murder of Dr Robert Ouko, Kenya's urbane foreign minister.
When skullduggery failed to scare off the commission, which was chaired by current Chief Justice Evan Gicheru, the state abruptly shut it down. In fact, one would be hard pressed to come up with a commission of inquiry whose recommendations have made it off the shelf. I cannot think of any.
My hope is that the Waki Commission, which is composed of eminent jurists, and which grew out of Kenya's flirtation with the devil, will start a new trend - in the right direction.
Lack of integrity
If it fails, it will not be for lack of integrity on the panel. Justice Philip Waki, the chair, is a respected Kenyan jurist. Mr Pascal Kambale, one of two commissioners, is a renowned human rights lawyer with an admirable intellectual heft.
Mr Gavin McFadyen, the New Zealander, is also well reputed. But will their work serve the purpose for which the CIPEV was established?
Going by the book, the terms of reference of the Waki Commission are straight-forward.
Put simply, they are to investigate the causes of post-election violence, identify state action and the role of other actors during the pogroms, and make recommendations on what ought to be done to prevent a recurrence.
In other words, the commission has a truth-gathering function and a recommendatory mandate.
It is by nature a quasi-judicial body without the power to sanction or prosecute. Nevertheless, it has a political fingerprint because its findings will bring pressure to bear on those identified as perpetrators. In this sense, the Waki Commission is a mini truth commission.
I attended one of the commission's sittings in which Ms Muthoni Wanyeki, the erudite executive director of the Kenya Human Rights Commission, was giving testimony about post-election brutalities.
I was impressed by the decorum of the commission and the solemnity of the proceedings. Except for the occasional grandstanding by some lawyers, the commission was purposeful.
Professorial
Justice Waki himself sounded professorial in his rulings and questions. Judging by the battery of lawyers for the police and assorted other subjects of the inquiry, it was also clear that the exercise was costly to the public purse.
The question is whether the state will have the gumption to take the recommendations of the commission and make some meaningful use of them.
My view is that the Waki Commission is a test case for the actual truth commission. For the country and the state, it is a kind of a dry run.
If those who have appeared before it are taken seriously - which I believe they have by both the public and the commission - then there will be the beginnings of a culture of accountability.
Pay homage
But the state must above all pay homage to the commission and seriously take its recommendations. This is the case because the state is the key accused before the commission.
It is the state that failed Kenyans during the last elections. The institutions of government either collapsed or were compromised. As a result, a democratic election became the trigger for genocidal violence.
The key signal as to whether the state takes the Waki Commission seriously will be the extent to which it takes steps to combat impunity.
What will state do, for example, if high ranking officials are named in connection with the post-election pogroms?
Will it have the guts to proceed against them in courts of law? Will they be stripped of their offices? If not, then the commission will have been just another talking shop.
Failure to act will also signal that the country is really not ready for a truth commission.
In that case, the Waki Commission will have been a cynical ruse by the state to perpetuate a culture of impunity. It will also be an abuse of three good men who have generously given of their time to serve the public good.
I hope that my worst fears are not realised. I do so because as many people know, I believe that a truth commission is the only omnibus vehicle that can excavate the demons that torment Kenya.
I have argued for years now that a truth commission will allow us to peer into our darkest souls so that we can bring light to them.
Secure future
We cannot build a secure future by running from the devil in us.
The smart -- and the only responsible -- thing to do is to confront ourselves so that the country can engage itself in a national jihad -- an internal struggle of purification -- to cleanse its malignant spirits.
I am certain that we will not like some, perhaps many, of the things that a truth commission will tell us about ourselves. But there cannot be salvation without knowledge and submission.
This will be a long and arduous journey. But it is a journey on which the Waki Commission has started us. That is why the Waki Commission is the critical test case.
Makau Mutua is Dean and SUNY Distinguished Professor at the State University of New York at Buffalo Law School and Chair of the Kenya Human Rights Commission.
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