19 October 2008
Nairobi — Systematic institutional failures in Kenya's internal security mechanisms, impunity and popular anger drove the country's devastating post-election violence.
That is the broad conclusion of the report of the Commission of Inquiry into Post-Election Violence (CIPEV) headed by Justice Philip Waki, which handed its report to President Mwai Kibaki, Prime Minister Raila Odinga and mediator Koffi Annan last week.
The Commission had been mandated to investigate the causes of the widespread violence that rocked Kenya in the wake of the disputed December 27 presidential election.
Also handed over to Mr Annan, the former United Nations secretary-general, was a sealed envelope containing the names of the chief instigators and financiers of the violence that nearly brought Kenya to its knees, and disrupted economic activity across the region.
The Waki Commission has recommended that the suspects be tried by a specially constituted Kenyan tribunal, or the International Court of Justice at The Hague.
That recommendation, analysts say, is likely to kick up a political storm, not least because some of those named occupy high positions in Kenya's coalition government.
According to the October 17 issue of the Daily Nation, the list of suspects includes six current ministers, five MPs and a host of top business leaders.
Significantly, some of them had been implicated in previous outbreaks of inter-communal violence in previous investigations, including the so-called Akiwumi Commission, which investigated the tribal violence that broke out in the 1990s when multi-party politics were re-introduced to Kenya.
Much of the violence then was concentrated in the Coast and Rift Valley provinces, the latter of which was the epicentre of this year's outbreak.
Others were indicted in a second investigation, known as the Kiliku Report, which also tried to establish the genesis of specific outbreaks of violence.
In a bid to guarantee prosecutions this time round, the Waki Commission has recommended that Kenya's Grand Coalition government jointly agree, through a signed agreement, to establish the special tribunal to try the suspects within 60 days from October 17.
A Bill would subsequently be enacted into law within 45 days to establish the tribunal substantively, failing which the matter will be handed over to the International Court of Justice (ICJ).
Last week, some lawyers said that the ICJ option was a long shot, given the acrimony that greeted the indictment of Sudanese president Omar al Bashir, and the attendant allegations that international courts are being used to hound African leaders. Opinions are also divided on whether Kenya's violence, though brutal and widespread, constituted genocide.
According to the Waki Commission, institutional failures in Kenya's internal security systems contributed greatly to worsening the post-election violence, with police alone shooting at least 405 people dead. Many of the deaths occurred in Nyanza Province, which did not experience widespread inter-communal violence.
In the region, violence and arson were mainly targeted at government installations and private businesses, where looting occurred.
Ironically, elsewhere, some police units also abetted looting and burning of property because of factional divisions, the Commission established.
The failure by security agencies to prevent or control violence, the Commission added, was particularly regrettable because they were in possession of "actionable intelligence" from the National Security Intelligence Service (NSIS), Kenya's lead intelligence outfit.
The agency had correctly predicted hotspots and the pattern of violence before and after the electioneering period but according to the Commission, little seems to have been done to pre-empt it.
Among the raft of recommendations the Commission makes to raise the responsiveness and effectiveness of Kenya's internal security structures are the merger of the regular and Administration Police forces, and the streamlining of intelligence gathering apparatus.
The Commission also recommended the overhaul of the Criminal Investigations Department and its upgrading into a directorate under an Act of Parliament.
According to the Commission, some of the violence witnessed across Kenya after the announcement of the disputed presidential results was spontaneous, coming in the wake of a polarising campaign and debate on majimbo (federalism).
Much of the violence in the restive Rift Valley, the Commission however said, was pre-planned contrary to the assertions of local political leaders.
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