Why Waki Report is Different!

The Waki Report and its recommendations belong to the people of Kenya and the international community. The politicians can only decide to trash it at their own peril.

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.

The Waki report cannot end up gathering dust on the shelves of bureaucratic offices like its predecessors. The government will have to implement it effectively or risk the ICC taking over the matter. In either case, the people of Kenya should be the winners and impunity the loser.

Who Controls ODM?

In Kenya every political party “ina wenyewe” has its owners. Who are the owners of ODM? After ODM rejected the Waki Report (The Daily Nation, 31 October 2008), the question becomes pertinent. Earlier in the year I wrote in this blog about Demystifying ODM (see below) because I believed that ODM was taking Kenyans for a ride with their pro-masses and pro-people rhetoric – “ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric”, I wrote. But I found an appropriate article debunking ODM myth by Mukoma wa Ngugi “Understanding the Kenyan Opposition”. If you have not read that article and you want to understand who owns ODM you better do so now.

Coming back to who controls ODM, the rejection of Waki report answers the question. Ngugi identified three forces in work in ODM.

“Within the opposition leadership (or the Pentagon as they refer to themselves), there are at least three competing elements -- the activist-intellectual left, the Moi-ist retrogressives, and the populists, he wrote.”

It is now clear as daylight that the populist faction led by the Prime Minister Raila Odinga does not control ODM. Others in this group may be Musalia Mudavadi and James Orengo. Raila does not also seem to have the control of the Luo Members of Parliament as one would think. They defied him for supporting the implementation of the Waki report and even purported to gag him from speaking out on national issues. The Standard 31 October 2008 wrote:

“Nyanza MPs have asked Prime Minister Raila Odinga to consult his ODM colleagues before commenting on sensitive national issues. The MPs also told Cabinet ministers Anyang’ Nyong’o and James Orengo to be careful while contributing to political issues. Sources at a meeting held at Jaramogi Oginga Odinga Centre said the 14 MPs also cautioned the PM over his position on the Mau Forest. "We asked him to be careful with political issues, which we felt may not augur well for his political future," said an MP, who attended the meeting. The MPs told the PM to his face they would not tolerate any more outbursts from him. "We sought to know from him, what interest he had on the Waki Report or Mau Forest to go the extent of committing political suicide while there are ministers supposed to handle the issues," the source said.”

Even the maverick James Orengo was made to eat his own words.

The stormy meeting saw Mr Orengo withdraw and apologise over remarks he had made that those named in the list should carry their own crosses.

The activist-intellectual left led by Anyang’ Nyong'o does not too control ODM. Nyong'o has not made his position on the Waki report known so far. His colleague, with whom they led this faction during the pre- and post-election, Salim Lone has since quit his job as the adviser of the Prime Minister. Perhaps he realised that the owners of ODM were about to claim its control and made an early exit.

That leaves us with the Moi-ist retrogressives. For all practical purposes this is the faction controlling ODM. It is led by William Ruto and William Ole Ntimama. This is the group where those allegedly involved in past and the recent impunity congregate. Ruto, Ntimama, Henry Kosgey and Fred Ngumo were the first out to trash the Waki report in the ODM. They have now enlisted most of ODM politicians especially MPs. Most of the MPs in ODM belonged to the past Moi era and part of his regimes impunity. It is not surprising now that they are taking control of ODM to shield the impunity. They have even the impunity to declare that they will protect those on the secret list.

“ODM on Thursday rejected the Waki report on post-election violence as its leaders said they would resist attempts to charge any of those named in a secret list of suspected perpetrators.” The Daily Nation 31 October 2008.

By the time of writing PNU has yet to issue its official stand on the Waki report. When they do then we will know who owns PNU too. But from their utterances it is not difficult to tell. We, however, give them the benefit of doubt for now until they state their official position.

The Waki report belongs to the people of Kenya and international community not the politicians who are part of the impunity. The politicians have been taking the people for granted. They unleash impunity and declare themselves innocent. It is time to reject all politicians who reject the Waki report. The people should support implementation of the report and refuse to be divided on ethnic lines by the politicians. The international community should now know all Kenyan politicians are the same and support the people of Kenya in bringing those in the secret list to the International Criminal Court.

This is the time for the civil society, religious faiths and all people of Kenya to stand together against the monster of impunity. Don’t fall prey to the divisive tactics of the politicians this time round. It is time to demand Justice.

Kibaki and Raila Should take a Retreat Urgently

Kriegler and Waki reports are a damning audit of Kenyan leadership, institutions and society. According to the reports, leadership and institutions in every sector of the society were culpable for the political and moral decadence that led to the pre-election and post-election violence. The reports unanimous conclusion is that the culture of lawlessness, disregard of rule of law and impunity in society, is to blame. The reckless culture was exhibited by the top most State executives down the hierarchy to the ordinary persons.

The report by Kriegler went further and stated that even a new constitution may not solve the problem which basically is cultural in nature. It demanded a head on, no nonsense approach to deal with the lawlessness and impunity. Waki report reiterated the same and offered a prescription for dealing with the problem through establishment of a special tribunal to investigate and prosecute those bearing greatest responsibility in the matter. In addition, both reports recommended a complete legal and institutional overhaul and reform to ensure transparency and accountability.

The task ahead is enormous and requires creativity, honesty and forthrightness. The national behavior of pointing fingers, blame and burying the head in the sand will not do this time. There is no single institution that with moral authority left to suggest others are to blame. The entire country should stop and examine itself as cosmetic solutions are not appropriate. The country needs long lasting and sustainable legislative and institutional solutions.

When the leadership and institutional credibility in the society is questionable, hope for restoration and renewal resides in the highest authority in the country. The President and the Prime Minister are the highest authorities in the country as leaders of the government of coalition. During the post-election crisis the country trusted Kibaki and Raila to rise to the occasion and end the violence. They did. Now again the society expects them to show leadership and restore the dignity and respectability of the nation.

The grave conclusions by the two reports should have made the two leaders to go to a close door retreat urgently in order to discuss the reports and come out with a blueprint on the way ahead. The compromised Cabinet and Parliament might not have the faith of the people to do this. Their role currently, until they are also reformed, should be to give administrative and legal effect to the decisions of the principals. That is an indication of the level and extent of decay in the national institutions and society.

The modus operandi here my sound dictatorial, but during institutional crisis, as the one the country is facing now, a singular and purposive direction is required. Taking a leaf from the prevailing international financial crisis, the big capitalist countries’ leadership moved very fast, without any delay, to arrest the situation. The way they did it cannot be said to be democratic. Decisions were made by the top most government executive authorities and were presented to their institutions for administrative and legal authorization. Less is expected in Kenya now.

Demystifying ODM

I have always wanted to write a piece debunking ODM, one of the main protagonists in the Kenyan political crisis. There is a perception that ODM represents the aspiration of the oppressed masses while its antagonist PNU represents the oppressive State elite and apparatus. Nothing is far from the truth. My frustration is that ODM has camouflaged its anti-masses agenda through leftist and popular rhetoric. Consequently, an exposure of the different elements and interests in ODM is necessary if one is to understand the true nature of the crisis facing the country. A solution which is not informed by a clear understanding of the protagonists will only lead to bungled results.

Luckily, I do not have to write that piece myself because Mukoma wa Ngugi in her article “Understanding the Kenyan Opposition” has just done that. Ngugi’s analysis is very instructive and necessary reading for all who seem to give their advice on the way forward in Kenya. It is especially apt for the international community who seem not to understand what is playing out in Kenya. ODM like its counterpart the PNU is a gathering of pretenders, leftist activists, war-lords, and populists.

I strongly feel that any solution that does not hinge on advancing Kenya’s democratic and rule of law tradition as well as diversity and cohesiveness will play into the hands of these pretenders.

Read Mukoma wa Ngugi’s article here:

Kenyans were duped in the 2005 Constitutional Referendum!

(This is a longer version of an article published in "Business Daily Africa", Nairobi on 8 February 2008, under the title "Democracy comes in steps not a leap".)

Could a ‘Yes Win’ in the 2005 Referendum have saved Kenya from violence, killings and mayhem? I know that this may be an unorthodox question to ask currently but in times of crisis one needs to take the less travelled road in search for answers. Both the proponents and opponents of the 2005 draft constitution (Wako draft) agreed that it was not 100 per cent perfect. They conceded that there were some contentious issues that required to be worked out. The estimates were that the draft was 80 per cent good or better than the current constitution. But instead of focusing on what united both sides, the divisive 20 per cent became the focal point. The result was the rejection of the draft and a stalemate.

Since then, political life in Kenya has been characterised by this stalemate and the current standoff is its culmination. The confrontation has reached its apex and a climb down by all parties is necessary.

I think that there are lessons to aid them from the 2005 referendum.

The first lesson is that there are no perfect constitutions and a perfect constitution may not always work in practice. Constitutions are shaped by political and social-economic factors of the time. A perfect constitution remains an ideal and utopia to be achieved. The 2002 draft constitution (Bomas draft) is such an ideal. The referendum (Wako) draft was a major step to the ideal. It resonates with the saying that ‘if you want to land on the moon aim at the stars’.

The second lesson is that democracy is incremental. If in 1992 Kenyans had rejected the amendment to the constitution to reintroduce multiparty politics the democratic opening in the society then could not have been achieved. Similarly, if the 1997 inter-parties compromise had not been embraced by both sides the success of 2002 election could not have been possible. These were not perfect solutions but they advanced democracy, democratic institutions and society in general. In fact, the past five years was a period that the country enjoyed most freedoms in the history of the nation’s independence.

The rejection of the 2005 draft constitution denied the society and democracy an opportunity to advance. It rejected a Bill of Rights which was far superior to the rights and freedoms in protected in the current constitution.

More significantly, the draft constitution contained advanced provisions on matters core to the current political crisis and which could have steered the country out of the impasse. These provisions were similar if not verbatim to the Boma’s draft. I draw attention to a few key provisions below.

The Wako draft contains an important provision on a fair election Article 101(e). According to the provision a fair election means:-
1) free from violence, intimidation, improper influence and corruption,
2) conducted by an independent body,
3) administered in an impartial, neutral, transparent, accurate, efficient and accountable manner.
The provision would have been crucial in determining whether the 2007 election was fair and free.

The independent body referred to above is the electoral commission. Article 109 of the Wako draft establishes the electoral and boundaries commission and stipulates its functions, duties and powers among them the efficient conduct of elections and referenda. Under Article 273, the composition of constitutional commissions, which the electoral and boundaries commission is, members are to be appointed by the president with approval of parliament. This provision reduced the powers of the president as is contained in the current law where the appointment of the members is the sole prerogative of the president. Under the Wako draft constitutional commission are independent and not subject to direction and control by any person or authority and shall be impartial and perform their functions without fear, favour or prejudice.

The judiciary has come under a ferocious criticism from the opposition as a Kibaki instrument, stacked with his own political appointees. The current constitution gives the president the exclusive powers to appoint the chief justice. As regards the judges the president appoints them under recommendation of the judicial service commission. As such, the president has the final say in the appointment. But whether the judges are under his direction is another question as they enjoy tenure of office which limits the powers of the president to sack them. Under the Wako draft, the president appoints the judges under the advice of the judicial service commission and the approval of the parliament. In this arrangement, the power to appoint the judges is shared between the president and the parliament. Judges appointed under this procedure are deemed impartial and independent because they are not direct appointees of the executive. It is probable that if the Wako draft had been approved, the lack of confidence in the judiciary could not have arisen and the election dispute could have been referred to the court for arbitration. The Wako draft is similar to the Boma’s Draft on this issue.

The swift swearing in of the president after being declared the winner of the 2007 election by the electoral commission was criticised although it was not illegal under the current laws. The Wako draft, however, had a provision that could have cured the anomaly by prescribing an orderly transition after the election. Under Article 151 of the Wako draft on assumption of office of president, the president assumes office a) on the first Tuesday following the twenty one days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission; or b) within seven days of the determination by the Supreme Court of the election petition filed under Article 150. Article 150 provides the procedure to follow in filing a petition objecting to the validity of election of the president-elect. The petition shall be filed within seven days after the date of the announcement of the results of the presidential election by the Electoral and Boundaries Commission. The Supreme Court shall, within seven days of the filing, determine the petition.

The provisions on transition after the election stipulated in the Wako draft could have avoided the clumsy manner in which the swearing in of the president-elect was done. The draft clearly stipulates the time frame of events leading to assumption of office by the president-elect which allows for orderly transition and for disposing off any legal challenge to the validity of his or her election. The Wako draft provision was far superior to the Boma’s draft that did not give timeframe to events leading to assumption of office by the president-elect. The Boma’s draft states that the person elect assumes the office of the president ‘… on the date when the term of office of the incumbent President ends’. The provision is vague and does not take into consideration any legal challenge that may be mounted.

Finally, Wako draft and Boma’s draft had similar provisions on the procedure at presidential election in Article 149 and Article 157 respectively. These provisions lay down the procedure in case a re-run of presidential election was necessary. Article 149 (4) states that ‘the candidate for President who receives more than fifty per cent of all the votes cast in the election and who, in addition, receives a minimum of twenty-five per cent of the votes cast in more than half of the districts shall be declared elected as the President.’ Article 149 (4) says further that, If a candidate is not elected, a fresh election shall be held within twenty-one days of the previous election and in that fresh election, the only candidates shall be – (a) the candidate who received the greatest number of votes; and (b) the candidate who received the second greatest number of votes, and the candidate who receives the greater number of votes shall be declared elected as President.

It is abundantly clear that this provision was a saving clause in case no candidate garnered the required fifty per cent votes. In the current stalemate both Kibaki and Odinga did not meet this required and a re-run would have been the option rather than the current legal vacuum.

In short, there were many positive democratic victories that were lost when the baby was thrown out with the bath water in the 2005 referendum. Political expediency rather than national interests dictated the choices fed to the populace by the political elite and civil society. Simply put Kenyans were duped in the 2007 referendum that the Wako draft constitution was no good and should be rejected. That decision has come to haunt the nation with dreadful consequences. In hindsight, Kenyans should approach the current dialogue with an open mind and should not reject major victories because the whole battle is not won.

Preserve the energy for future victories not war and mayhem.

Related Views:

NJOKI NDUNGU'S WITNESS SUBMISSION TO US CONGRESS

"Further, politicking and posturing on narrow agendas, such as the contentious MOU[4], rather than focusing on national interest, led to the rejection by oblivious Kenyans of the new draft Constitution in 2005, who threw away its proposed new structures for power sharing between a President and Prime Minister, the reduction of presidential powers, increased parliamentary vetting of public appointments and institutions to deal with the land question, devolution of resources, and addressing the inequalities of the marginalized.

If that Constitution was in place, the tragedy of the last few weeks would have been avoided."

Read full Submission here

Kenya: The Way Forward! Is this It?

Below is an extract of a full report by African Policy Institute on the Kenyan election and ensuing mayhem and violence: Breaking Kenya’s Impasse: Chaos or Courts? It confirms what this blog (below) has advocated as the only viable way out of the political and democratic impasse in the country.

Here is their conclusion. But you can get the full text of the report here.

Conclusion
Kenya is facing perhaps the most profound test of its stability and institutions as it moves into its fifth election cycle. The 2007 election has ended in a dispute. The role of international mediators and wellwishers like Desmond Tutu, John Kufor and Kofi Annan who have played a pivotal role in trying to break the impasse and normalize the situation, but the crisis persists. But while their role is a welcome gesture of good will to the people of Kenya, overstretching mediation may permanently erode the credibility of Kenya’s established courts and other arbitration institutions which Kenya’s people have painfully nurtured for the last 44 years. What has come to be called the Kenyan crisis is a perfectly normal situation that from time to time confronts in democratic systems. It should never be likened to ‘political crises’ in other parts of Africa like Somalia or Darfur-although Kenya may get there if this is not addressed expediently.

Rather, what Kenya is witnessing is an election dispute like the one that engulfed America in 2000 when the Democratic and Republican party candidates disagreed on the process and results. While elders like Jimmy Carter and James Baker were called by both sides to cool tempers, all parties to the dispute were agreed that the court system—with all its faults, including partisan and ideological interests--was the way to go. Kenya will have many more disputed elections 200 years today. No matter how compromised the court system may be, it is still the only credible and sustainable arbitration mechanisms open to, and ever invested by, civilized societies.

Kenya needs the courts to suggest the way forward, not mediators to broker transient deals and power pacts among powerful elites. Certainly, chaos in all its guises is never the way out. Kenya must now return to reason. The opposition should stop all its mass action because it can only produce another disputed, and possibly dictatorial, regime. The government should guarantee that the dispute will be dealt with within reasonable time—no more than three months. It might be necessary to call in judges from other commonwealth countries to provide the necessary neutrality and restore the confidence of the parties to the dispute in the courts. Finally, all parties must be prepared to honor the final verdict of the courts: a recount, a re-run, or a victory of either of the parties.

The role of the court should be supported by national mediators and the media who have to do the spade work in reconciling communities torn by violent conflict and calming the nation. The national healing process must of necessity involve the resuscitation of Kenya’s multi-ethnic vision based on civic rather than ethnic citizenship, sanctity of law and public order and the courts as the supreme arbiter in all disputes, including election ones.

Full text report here!

A Bleeding Kenya: Why did this not happen sooner?

Since the atrocities of ethnic violence, mayhem and senseless killings befell our beloved country both in the run up to the December election and soon after the declarations of the flawed presidential election result, I have been following commentaries and opinions in print and electronic media. Despite many opinions and explanations as to the genesis of the quandary the nation found itself in the aftermath of the election, none seems to explicate the pertinent issue. Why did this not happen sooner? Calorine Elkins asked this question in her opinion “Ethnic woes a legacy of colonialists’ power” the Standard 7 January 2008. Unfortunately, even Elkins could not answer the question. Her colonialist hypothesis did not explain why Kenya has remained an island or oasis of peace in an armed conflict turbulent region. In order to understand the current political impasse and the violence and mayhem, it is imperative to answer this question adequately.

First let me characterise the current political stand off in the country in terms of “two centres of political power”. The antagonists of the two centres of power are Mwai Kibaki and Raila Odinga supported by their (ethnic) political bases. The ended election was supposed to decide the rivalry between the two centres, which strongly emerged after the 2002 elections and continued to date, but it failed and instead bequeathed two equally strong centres. The country is therefore spilt in the middle with both opponents enjoying at least 4 million strong votes support. The stand off has trashed the façade of peace and tranquillity hitherto existing in the country. How therefore can this phenomenon be understood? Why did peace and tranquillity in the country disappear so suddenly? To understand this, interrogation of how the past regimes maintained the relative peace and stability is needed.

The answer to the question may recline to how the first president Jomo Kenyatta and his successor Daniel Arap Moi dealt with alternative centres of power during their reigns. Both never allowed alternative centres of power to flourish and blossom. They vanquished them in the bud. Various methods were used such as political persuasion (KADU 1964), snap elections when their enemies were weakest (little election 1966 and snap election 1983), detention without trial, imprisonment under trumped up charges, brutal force and assassinations (Tom Mboya, J. M. Kariuki and Robert Ouko). Most of these techniques were undemocratic, illegal and a travesty of justice and human rights. But they sustained these regimes in power and the ‘apparent’ peace and tranquillity in the country during their reign. Their actions must, however, be understood in their historical and political context namely one-party state either de jure or de facto. Under those circumstances, the two presidents wielded absolute political power which they used to vanquish any challenge. But what is important to note also is that they did not allow any competitive elections except when their adversary was at his weakest. The last constitutional terms of Moi are the exception but even during the 1992 and 1997 elections the opposition was divided and could not pose a strong centre of power to his presidency. In 2002, Moi did not contest the election because he was constitutionally barred. On the other hand, the opposition managed to unite and fathom out an alternative centre of power which went ahead to vanquish Uhuru Kenyatta, Moi’s appointed follower, and KANU dominance.

After 2002 a new centre of power emerged and Kibaki was not able to snap it in the bud. This explains the constitutional impasse and parliamentary stalemate (though through government of national unity Kibaki was able to circumvent through the deadlock) and the current stand off where Kibaki met a powerful adversary at the election something his predecessor never permitted. Kibaki did not avail himself the illegal measures used by his predecessors perhaps because of the multiparty democracy and human rights context he operated in.

So what is the way forward?

In a dictatorship, peace and tranquillity is maintained through brutal force and unlawful means. In a democracy, it is maintained through democratic institutions. The choice facing the country now is between dictatorship or democracy. If Kenya is a democracy, the solution to the impasse must be informed by the country’s democratic, political and legal institutions and not violence, killings and political mayhem.

After the Election Commission of Kenya declared Kibaki the ‘winner’ of the presidential election, no matter how flawed the elections were, the stability of the country rests on its other institutions despite their perceived shortcomings. They must be allowed to shoulder the responsibility they are entrusted with by the law. They must be tested, as perfect institutions do not exist. Strong institutions are created and tempered by crisis. To trash what there is aside is to create a dangerous precedent where any politician and political centre will choose the institutions to be subjected to and which to ignore and discredit.

Whereas foreign mediation may appear an easy way out of the current political crisis, ultimately it is the national institutions that will guarantee rule of law and democracy. Foreign mediation if resulted to must work within the framework of the existing national institutions without circumventing them. At the same time, any party with the interest of the country at heart must permit the national institutions to resolve the political deadlock so that the country and its seemingly bungled democracy can emerge stronger. To embrace democracy is to accept its shortcomings but also to learn from them so as to advance to a higher level of democracy.

Related Views:

Why court is the best solution in poll result row.

Strong institutions our only way out.