31 October 2008

Kenya: MPs Demand Waki's Secret Envelope

Nairobi — Politicians opposed to the Waki report on post-election violence are making fresh demands, which if not met will lead them to kick the document out of Parliament.

After a meeting on Friday, they declared that Mr Justice Philip Waki erred in denying the President and Parliament access to the envelope which holds the fate of political careers of six Cabinet ministers, five MPs and unnamed number of prominent business people.

Unless they received the list, they warned that they would not discuss the report.

The demand for the list featured in a meeting of top PNU leaders at Vice-President Kalonzo Musyoka's office on Friday and another night meeting of MPs from Central Kenya on Thursday night.

The MPs mainly from PNU argue that the Waki report is "not complete" without the list and therefore Parliament cannot debate it.

They also want the evidence accompanying the names to be tabled in the House so that MPs can discuss and examine each of them before they can decide on the formation of a special tribunal.

The envelope containing the names was handed to chief mediator Kofi Annan and will be released only to the prosecutor of the tribunal or handed over to the International Criminal Court if a special tribunal is not appointed according to the Waki team's recommendations.

The Hague

However, Cabinet ministers Mutula Kilonzo and Martha Karua argued on Friday that the terms of the Waki Commission provided for concealing of the names until those mentioned are either taken before a local tribunal or the International Criminal Court (ICC) at The Hague, Netherlands.

The document signed by the eight members of the PNU and ODM negotiating team, four apiece, says the main findings were to be made public within two weeks while others were to be kept secret.

"Main findings of the report will be made public within 14 days of submission, although certain aspects of the report or annexes may be kept confidential in order to protect the identity of witnesses of persons accused," the document dated March 4, 2008 states.

The same information was passed to President Kibaki, the Saturday Nation learnt.

Those who signed it on behalf of PNU are Cabinet ministers Karua, Kilonzo, Prof Sam Ongeri and Mr Moses Wetang'ula. The ODM representatives were Deputy Prime Minister Musalia Mudavadi, Ministers William Ruto, James Orengo and Sally Kosgei.

On Friday, Mr Kilonzo argued that politicians lobbying to throw out the Waki report were engaging in an exercise in futility and exposing suspects in the secret list to the ICC.

He said the arguments will not affect recommendations that the suspects be investigated and tried at The Hague, if a special tribunal is not formed locally.

A senior ODM politician who did not want to be quoted discussing his colleagues branded the decision by political parties to reject the Waki report the "height of hypocrisy". He added: "The terms of the Waki commission are clear and there is no way they can be reversed."

Mr Kilonzo said the Commission of Inquiry into Post Election Violence was anchored on the National Accord and Reconciliation Act which was signed by the African Union chairman, Tanzanian President Jakaya Kikwete.

Also signing the document was AU representative former UN secretary general Kofi Annan in addition to President Kibaki and Prime Minister Raila Odinga.

The minister warned that if Kenya failed to form a special tribunal to investigate the suspects, the matter will be taken over by the ICC.

"Let them prepare for The Hague... It is automatic. This report has a self-triggering mechanism that gives us 60 days to form the tribunal or else the ICC takes over," he said.

The Waki team said in its report: "In default of setting up the Tribunal, consideration will be given by the Panel of Eminent Persons to forwarding the names of alleged perpetrators to the special prosecutor of the International Criminal Court (ICC) in the Hague to conduct further investigations in accordance with the ICC statutes."

Mr Kilonzo said since the Waki team was non-judicial, it was allowed to listen to hearsay.

On Friday, PNU bigwigs who had converged at Mr Musyoka's office failed to agree on the way forward over the report. Instead they announced a PNU Parliamentary Group meeting scheduled for Tuesday to give the party's position.

Speaking after a three-hour meeting at Jogoo House, Mr Musyoka said: "PNU coalition will not participate in a knee-jerk reaction to the matter because of the serious national implication deriving from the report."


The decision by the 11 ministers who attended the meeting was surprising considering that some of them had opposed the report's implementation.

Ministers present were Ms Karua, Mr Kilonzo, Prof Ongeri, Mr Moses Wetang'ula, Mr Kiraitu Murungi, Prof George Saitoti, Dr Noah Wekesa, Mrs Beth Mugo, Mr Chirau Mwakwere, Mr Yusuf Haji and Mr Mohammed Kuti.

Also present was the chairman of Central Kenya MPs Ephraim Maina who dismissed the report saying it had victimised leaders from Central Kenya unfairly. He said no one planned or organised violence from the region.

Although Mr Musyoka, Mr Murungi and Mrs Mugo had earlier cautioned against the full implementation of the recommendations, they appeared to have backtracked on that decision on Friday.

It is understood that Mr Kilonzo told the meeting that they were engaging in a futile exercise if they "blindly" shot the report down.

Later at the press conference he said those opposing the report had taken the position because of self-interest, but said they will not be "judges in their own court".

Ms Karua, who left the meeting early, declared that she will not be part of the group of politicians working against the terms of reference of the Waki Commission.

"We are actually working on things in the reverse. My stand has always been that we implement the report because if we don't, what kind of message are we passing to the world?" she asked.

The Justice minister said the country was "between a rock and a hard place".

"We must ask ourselves: do we prefer this matter to be taken over by the ICC or we set up a tribunal through an Act of Parliament?"

Mr Murungi said there should be a delicate balance to ensure that impunity and the cycle of violence in election years ended while unity was achieved.

He said the country must end impunity because election years for some people in the Rift Valley meant murder and destruction of property.

GNU leader Mwangi Kiunjuri warned that the issue could soon be out of Kenyans hands if Parliament did not act fast to anchor a law to facilitate a tribunal.

Mr Kiunjuri said those named in the envelope could find easier justice in Kenya than languish at The Hague.

He dismissed the ODM position saying, the Waki report merely asks that the individuals in the envelope be investigated, and this did not mean that they were condemned unheard.

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