The implementation of Waki Commission recommendations on impunity do not depend on the national mechanism solely. Previous commission reports such as Akiwumi, Kiliku, Goldenberg and Ndungu, were not implemented because they solely relied on the national process. The Waki report is different because the national mechanisms are only recommended if they work. If the coalition government fails to act or acts in a manner that is deemed inadequate, international procedures will be invoked.
The international dimension is already causing discomfort in the coalition government and among the political elite. It is dawning to them that it is difficult to ignore the report unlike the previous ones. Similarly, rejection or half measures meant to circumvent the recommendations will not work this time round.
Let us look closely at the interplay of the two mechanisms and why this was the best solution for the situation in Kenya.
Under international law the primary obligation to enforce the law lies on the national authorities and institutions. States and governments exist precisely for this reason. The Waki Commission restated this obligation when it called for the establishment of a special tribunal. The tribunal is to investigate and prosecute those found to have played significant role in organising and planning the violence.
The special tribunal must meet international standards for it to have legitimacy. The most important standard it must comply with is to seriously deal with impunity and not reward it. Governments notoriously use amnesty as a political and legal tool to circumvent justice. This is what Waki was realistically avoiding.
By their utterances and demeanour in the public and the media, the political elites are already contemplating amnesty as a soft landing for their colleagues. International law, however, does not look favourably on national amnesty especially if its purpose is to defeat justice and reward impunity. If the coalition government uses amnesty and other measures to reward impunity, the international mechanism established under the International Criminal Court will be resorted to.
The ICC is complementary to national criminal jurisdiction and as such an institution of last resort. The ICC jurisdiction is invoked only when the national jurisdiction cannot be exercised. That is when there has not been any national investigation or prosecution of the case or a state is genuinely unable to carry out the investigation or prosecution of alleged criminal under its jurisdiction, or is unwilling to do so, as stipulated in Article 17 of the Rome Statute.
The Waki Commission was contemplating all these scenarios. It was contemplating a situation where the government would ignore or reject the report and do nothing. That is, it fails to establish the special tribunal as recommended and does not even attempt to apply other domestic mechanisms such as a truth, justice and reconciliation commission. It also anticipates a situation where the government may establish the special tribunal but undermine it so that it does not accomplish its purpose. It may for example, limit the powers of the tribunal or deny it enough financing so that it fails to carry out adequate investigations and prosecutions.
Lastly, the government may not be in a position to carry out the investigations or prosecutions because it has no financial and personnel capacity to do so. The judiciary is weak or non-existent. It may also fail because doing so would cause serious political and social raptures in society.
Applying national mechanisms have the advantage of the affected community dealing with its impunity and therefore finding a sense of healing and restoration. But it could also lead to serious divisions in the society that may engender more impunity. In the latter case, the national process may not be the appropriate solution.
The international mechanisms, on the other hand, evoke resentment and sense of interference. It may be seen as interference with national sovereignty. But the latter is mainly used to defeat justice by the perpetrators. The resort to international jurisdiction may be the best solution where fear of political interference and social divisions in the society is immenent. Trying perpetrators in distant foreign land can lessen tension in the society as the trial can lose its mobilising effect.