Mugumo Munene, Lucas Barasa and Sam Kiplagat
25 October 2008
Nairobi — A mountain of evidence collected in secret is locked up at the United Nations offices in Gigiri, Nairobi, awaiting the formation of a tribunal to try those people suspected of post-election violence.
The evidence -- including 900 pages of witness statements, plus 1,400 pages of supporting documents, pictures, video recordings and other material -- was collected by the Commission of Inquiry into Post-Election Violence in secret sessions, according to a source privy to the internal workings of the commission.
The evidence is not part of the report handed to the chairman of the Panel of Eminent African Personalities, former UN Secretary General Kofi Annan.
Instead it is being held in a safe alongside the envelope containing the list of the rich, powerful and well connected people suspected of having planned, funded or incited the violence.
The locked safe, which needs both a combination and a key to open, was carted off to the UN offices after the envelope was formally presented to Mr Annan on October 17. Only he has both the key and the combination that will open the safe, the source said.
It is this secret evidence that the tribunal proposed by Mr Justice Waki will rely on as a starting point, and whose contents the commission has chosen to keep secret until trials are held.Attorney-General Amos Wako said on Friday that there was inadequate evidence to prosecute anyone in the Waki report.
The existence of this secret dossier would appear to contradict that statement.
But in any case the Waki report only recommends further investigations, either by the Special Prosecutor of the proposed Special Tribunal for Kenya or by the International Criminal Court of Justice, at The Hague.
The commission's decision to keep the names of the suspects secret triggered speculation about who is likely to be on the list and what political implications would arise from high-level prosecutions.
Good at computers
"There was no possibility of a leakage of the actual list because Mr Justice Waki is very good at computers," said a former commission staff member.
"He's probably more tech-savvy than any other judge in his league and that means he typed some of the work himself as they discussed with the commissioners, especially what they considered very sensitive."
According to Mr Justice Waki's schedule, the Orange Democratic Movement and the Party of National Unity have 51 days as of October 26, to reach and sign an agreement establishing the tribunal.
After that, Parliament will have 45 days to pass and anchor in the Constitution a law establishing that body. Within the same 45 days, the President must sign the Bill into law and, one month later, the tribunal must start sitting, with sufficient resources and the independence necessary to get the job done.
Only two of the six judges will be Kenyan, and both the prosecutor and head investigator will be foreigners.
The ODM top brass held a meeting late on Wednesday in Prime Minister Raila Odinga's office to discuss the report at which it was agreed that the party would appoint a team of lawyers to study the report and advise on a common position.
Mr Odinga believes the report's recommendations should be implemented in full. In a statement sent to newsrooms on Kenyatta Day, the Prime Minister said: "... being agreed on what has gone wrong is not enough.
The challenge now is to amend that. First, we have to ensure that those responsible are held accountable, and that reparation is made.
Kenyans will not stop demanding justice - justice that will end decades of impunity, where powerful cliques have been at liberty to use the country as their plaything. The government is committed to implementing both Kriegler and Waki reports in full."
But some members of his party's top brass decided to call in lawyers for advice because they held a different view.
Agriculture minister Mr William Ruto, for example, gave his reasons for discrediting the report.
"They have suggested a concept that not only wastes time but defeats the whole purpose of unity. It has been laced with a threat that if we don't abide by the recommendations, the individuals named in the envelope will be taken to The Hague. This is a complicated process. To create a tribunal that does not recognise the Constitution is dangerous," he said.
Those who attended the meeting at the PM's Treasury office were Mr Odinga, Deputy Prime Minister Musalia Mudavadi and Cabinet ministers Henry Kosgey, William Ruto, Najib Balala and Charity Ngilu. Others were James Orengo, Paul Otuoma, Hellen Sambili, Chris Obure and Ibrahim Elmi.
Mr Ruto has said that the Waki commission did a shoddy job and that its findings should not be implemented.
Grand coalition
The Grand Coalition Cabinet is yet to deliberate on the contents of the report since they could not meet last Thursday because President Kibaki was out of the country. It is expected that the report will be discussed by the Cabinet this Thursday.
Ahead of the next Cabinet meeting, ODM has planned a parliamentary group meeting for Tuesday at which members will give their views on how the party should proceed. Coalition partner PNU is yet to take a party position.
PNU secretary general Albert Muiruri told the Sunday Nation that party members have held a series of meetings and would arrive at a common position in the coming days.
But even before the Cabinet had met, Government spokesman Dr Alfred Mutua was on the stump last Thursday to discredit portions of the Waki findings.
"How can a meeting have been held in State House before the General Election -- say, in September, October, etc. -- to plan for revenge attacks that had not yet occurred and which were to occur in January 2008. These allegations are not only logically untenable but ridiculous at best," said Dr Mutua.
He went on: "The President has never at any time held meetings with any person to plan violence, at State house or anywhere else in the world. This wild allegation is being repeated so as to paint a perception that the President and State House were involved in post election violence." Lugari MP Cyrus Jirongo says he will spearhead the rejection of the report once it is tabled in Parliament.
He asked President Kibaki and Mr Odinga to find a better way of reconciling the country and ending the culture of impunity.
Mr Jirongo said: "I will rally MPs to reject this report . . . we have to look for a better way to reconcile the country."
As the debate rages, the clock is ticking.
The Waki Commission warned: "If either an agreement for the establishment of the Special Tribunal is not signed, or the Statute for the Special Tribunal fails to be enacted, or the Special Tribunal fails to commence functioning as contemplated above, or having commenced operating its purposes are subverted, a list containing names of and relevant information on those suspected to bear the greatest responsibility for crimes falling within the jurisdiction of the proposed Special Tribunal shall be forwarded to the Special Prosecutor of the International Criminal Court.
"The Special Prosecutor shall be requested to analyse the seriousness of the information received with a view to proceeding with an investigation and prosecuting such suspected persons."
Constitutional amendment
All eyes will now turn to the President, the Prime Minister and Parliament to see if they will propose a constitutional amendment to pave the way for the establishment of the special tribunal.It requires 145 of the 222 MPs to change the constitution to provide for setting up the tribunal.
The release of the report threatens to cause upheaval in political parties with ODM being particularly hit by divisions and disagreements. Party MPs said they have been summoned for parliamentary group meeting on Tuesday at which the report will be discussed.
"We want to take a position cautiously," Konoin MP, Julius Kones told the Sunday Nation by phone.
Various factions in the party have also been meeting separately and Dr Kones said yesterday Rift Valley leaders had arrived at a preliminary stand on the report.
However, Rift Valley MPs who have strongly opposed the implementation of the report have planned another meeting on Tuesday night after the PG to "digest" the party position and give their own.
The Rift Valley was the most affected province in the violence and the Waki report observes that killings have been used as a means to power since the 1990s.
A number of MPs from the province to whom the Sunday Nation spoke were unhappy with Mr Odinga's call for the implementation of the report saying they felt betrayed.
"We don't want to say he has betrayed us. However, comments he has made of late reflect that position. We encourage him to be consulting first on weighty issues," Dr Kones said.
His Eldama Ravine counterpart Moses Lessonet claimed the PM was betraying leaders from Rift Valley "because he got what he wanted".
Mr Lessonet said Mr Odinga should not use the Waki Report to "eliminate possible competitors in the 2012 General Election.
In Rift Valley we are focused. If somebody is thinking otherwise, then we are sorry," he said. He defended the Agriculture minister saying: "Ruto should not even imagine resigning. He was never involved in the violence and it has now emerged that the post-election violence was never planned. (Mr) Ruto should not be scared."
The Waki team reported in its findings that the post-election violence was both planned and spontaneous. The identity of the people suspected of having planned the violence will not be known until the tribunal is set up.
Incited violence
Mr Lessonet opposed the recommendation to send those who funded, planned or incited the violence to the International Criminal Court at the Hague. "No Kenyan should be taken there. The report is a sham," he said.
Mosop MP David Koech, speaking by telephone, asked Mr Odinga to press for the release of youths he alleged were still being held at various police stations instead of calling for the implementation of the Waki report. The report says no one was being held illegally over the violence.
Dr Koech said as their party leader, the PM should also be taking issue "with people who stole the vote instead of following our leaders".
"There are people who sat down and planned to rig the election. Those are the people who should be answering most of these questions. Hundreds of youths were killed as they exercised their democratic right. It's shocking for somebody to turn around and target our leaders," he said.
He said the Waki report would be high on the agenda when ODM MPs meet on Tuesday.
"If Mr Odinga thinks that there are people among the leadership of our people who should be prosecuted, then that is an unfortunate thing. There was chaos all over and it is known that they were protesting against what had been taken from them; what was rightfully theirs," argued the MP.
Environment assistant minister Jackson Kiptanui, who is also Keiyo South MP, said Mr Odinga and President Kibaki owe their positions to the chaos and it is unfair for the small fish to be tried over the chaos.
Elections next month
"The Grand Coalition government is there because of the fighting earlier in the year . . . The PM and the President were even given degrees because of the outcome of the violence," Mr Kiptanui said.
The controversy in ODM comes as the party is preparing for elections next month.
Two schools of thought are emerging: There are those who believe that prosecution of the authors would hit PNU harder because they believe more of that party's leaders are in the secret list.
There are those ODM leaders who fear they could be on it and therefore oppose its implementation.
At the tense Tuesday night meeting in the PM's office, one minister from the Rift Valley is reported to have emotionally alleged that some people were in a hurry to send others to trial. He preferred the party opposing the tribunal.
The party has been struggling to address divisions sparked by dissatisfaction over the sharing of positions in the Grand Coalition government, appointments to state corporations like the Kenya Ports Authority, handling of the Kilgoris parliamentary by-elections and planned evictions of people from Mau Forest.
There have also been murmurs in the party over handling of youths arrested in the post-election violence, the planned formation of a grand opposition in Parliament and who should be the deputy party leader.
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In any conflict, the right to self defencse is a natural right, waki should therefore have indicated who were the people responsible for starting the conflict, was it muchuki and mithaura that caused the blood to start flowing in kenya or was it kivitiu?