This man, Waki

By Juma Kwayera

When he was appointed to chair the Commission of Inquiry into Post-Election Violence (Cipev), there were misgivings Court of Appeal judge, Mr Justice Philip Waki, would not have the spine to delve into causes of the political turmoil.

There was perception the commission was a political gimmick to buy time to enable Kenya return to normalcy.

Mr Justice Philip Waki

This appeared the case when Justice Waki, who chaired a commission of five international and local experts, was given just two months to accomplish the task, which, as it turned out, involved extensive tours to the trouble spots.

They got down to work when the embers of post-election anger were still smouldering and there was the obvious risk of reigniting the ethnic fury that turned Kenyans into primitive beasts within hours of Kibaki being declared President.

Two days after he handed the report to the principals — a tag given to Kibaki and Prime Minister Raila Odinga after agreeing to share power — The Standard on Sunday talked to the judge.

DETERMINATION

And the brief encounter radiated mettle and determination to overcome the odds.

"When we got down to work, there was the perception that ours was a ‘baby commission’ so it did not require a lot of money and time. We had to work within these constraints to accomplish this task," said Waki, who turns 59 later this month.

The final report turned out to be explosive, as it puts the political careers of key members of the Coalition Government on the line. Some of them face the risk of being arraigned in the International Criminal Court at The Hague.

The judge, a deeply religious person, says the work of the commission that took four months to complete was a product of God.

"Without him, it would not have been possible. I’m religious in the sense that I believe in the Supreme Being by whatever name you want to call him. There is a supreme God who is in charge of one’s faith," the judge said.

The conviction spurred him on to be impartial, bold and strive to lay the truth bare "even if it offended some people."

Indeed, the findings of his commission have elicited angry reactions in some quarters of the Government and culpable institutions.

The police were fast off the blocks. In a statement to newsrooms, it accused Waki of malice and self-seeking. "Waki’s motive of appeasing politicians is that he hopes to be appointed CJ (chief Justice) and therefore seeks to sanitise his image following the Ringera purge, where (sic) he was accused and later cleared of corruption charges," the police said.

In response, Waki said: "I don’t know where that perception came from, but it did not register in my mind. If there was some misgiving and apprehension, they were misplaced. I went through that situation and I have put that behind me. I’m now focusing on the future. I cannot mourn about one event for ages."

Waki was appointed to chair a crucial body just years after he was reinstated to the Bench following allegations of professional misconduct and corruption.

A tribunal headed by retired Justice Akilano Akiwumi quashed the allegations as baseless.

He said he is yet to understand the reason for his suspension, which he termed as a bad episode in his life.

"It was a traumatising experience because you are put in a situation where you do not know what is happening. I knew that if I stood by the truth, it would be vindicated," adds Waki, who says he harbours no grudge against his accusers.

Waki was suspended from the Bench following an investigation by Justice Aaron Ringera, which was intended to purge the Judiciary of graft. However, it turned out that Ringera, now director of the Kenya Anti-Corruption Commission, based his evidence on hearsay resulting in the tribunal chairman describing the allegations as "malicious, weak and frivolous".

Tough choices

Waki, whose findings have evoked local and international interest, said the period under probe was one of the most trying in his 30-year professional practice.

Indeed, Waki was on Friday applauded by former UN Secretary-General Dr Kofi Annan for being bold and forthright in the report that will be passed onto the Panel of Eminent African Personalities to ensure it is implemented.

Cipev was a product of the Agenda Four of the National Dialogue and Reconciliation Talks, which recommended that a commission of inquiry be formed to investigate post-election violence. Agenda Four also called for investigations into the Electoral Commission, with the outcomes of either commission forming the basis of the Truth, Justice and Reconciliation Commission. The truth commission’s mandate will be to find long-term solutions to Kenya’s historical injustices, crimes against humanity and economic crimes.

He plunged into legal practice in 1975 — after graduating from the University of Nairobi — at a law firm that belonged to Election Commission Chairman Samuel Kivuitu, Kivuitu and Co Advocates. During the investigations, the commissioners faced emotionally traumatising challenges to the point of wanting to give up. There were times when the adrenalin would run high, while at other times the macabre scenes they witnessed were depressing.

"There were two extremes that were unbearable. As we went out to collect information, we knew that we had a difficult task. We thought at first that it was going to be an easy task. We thought we were going to collect information about post-election violence before witnesses died or evidence was obliterated," explained Waki, on the scope of their task.

He added: "It turned out that it was an important national task. We had to work long hours and the witnesses needed empathy for them to give the information we were looking for. This took long hours." Initially, the exercise was scheduled to take two months, but because the list of witnesses was long, it took more time. "We had to complete the list of witnesses and it required working long hours, sometimes late into the night. That involved listening to evidence from witnesses who wanted to be heard in camera."

However, the most engaging part of the investigation was compiling and collating evidence to make sense of it. The commissioners had to waffle through 10,000 pages of evidence submitted in writing and a corpus of evidence recorded in the form of audio and videotapes. They condensed this information into a 539-page report.

The evidence was horrifying, he said. "Around Naivasha, we came across bodies of men whose private parts had been cut and stuffed in their mouths. Their torsos were dismembered. Further up in Rift Valley, we came across a family of one man after eight members of his family were hacked to death as he watched."

The tales were heartbreaking. Encounter with State brutality in Nyanza and Western Provinces was even more excruciating emotionally.

"In Nyanza, the police were the perpetrators of the horrific deaths. The police went on a killing spree by shooting unarmed and defenceless people. It was horrendous," remarked Waki of his team’s conclusion that the State unleashed terror on its people.

He added: "At the end of the day, we would require debriefing and psychological counselling. We had also to prepare witnesses psychologically to prevent them from breaking down, which took a long time to get things moving."

The judge said the trauma the commissioners went through has reinforced further his loathing for politics as a realm for ‘perverts’. He says the horror visited on civilians depicts politicians as bestial and driven by primordial animal instinct.