Waki took Kenyans for a ride

Ahmednasir Abdullahi argues the Commission was either in a hurry to reach preconceived conclusions or turned a blind eye on individuals who triggered the chaos.As a member of a legal team that appeared for two clients before the Commission of Inquiry into Post-election Violence, I find the 529-page report a work of pseudo legal fiction, and a poor one at that. What is amazing is the superficial surmise of the report, the doggy sources of the purported evidence relied on, the breathtaking disregard for due process and the mendacity that drips from every line of the report. The report reads like a well-calculated act of legal skulduggery. It is a narrative clothed with a veneer of a national calling, but all too familiar, designed to settle scores, Kenyan style. Its voluminous nature, in addition to a number of incredible conclusions, remains its defining features. The latter not only raises alarm but also undermines its qualitative value. There are a number of factors that militate against any attempt to take the report seriously. First, the sweeping findings and generalisation by the commission is astonishing. We must remember that 40 per cent of hearings were conducted in camera in which the commissioners solely heard alleged testimony of witnesses no one else knows to date. Second, the quality of the report is undermined by the use of irrelevant thematic conceptualisation that reasons through the prisms of historic analogies. Cheap exerciseThird, the report upon closer scrutiny comes out as cheap exercise that panders to certain political power play. Fourth, some of the recommendations of the commission like the one calling for the establishment of a tribunal is a thoughtless suggestion that it makes one wonder whether the commissioners appreciate basic principles of municipal and international law. Fifth, the report largely ignores its number one mandate, which was to find what caused the violence.The Commission was mandated first, to investigate the facts and surrounding circumstances related to acts of violence that followed the 2007 elections. Second to investigate the actions and omissions of State security agencies during the course of violence. Third, perform any other tasks that the commission may deem necessary in fulfilling the foregoing terms of reference. Fourth, make recommendations on measures to address impunity and bring to justice those responsible for criminal acts. Lastly, make recommendations to the truth, justice and reconciliation commission. Its most important mandate was to investigate the causes of the election violence. Ideally, this meant an in-depth factual and analytical investigation. This aspect of its mandate is addressed in a most flippant way, in only 15 pages. That the commission addresses the causes of violence so casually means it was either in a hurry to reach certain preconceived conclusions or that it deliberately turned a blind eye on certain individuals and institutions that triggered the chaos. The commission identifies four remote causes of the post-election violence, showing both its evasive manoeuvring and unease with this aspect of its mandate. The first cause is the growing politicisation and proliferations of violence in Kenya. This makes little sense. Politics and electioneering have always been violent in Kenya. The second cause is the growing power and personalisation of power around the presidency. The report really goes for President Kibaki’s blood in a manner that smells of a personal feud. President Kibaki does not wield a fraction of the power exercised by both former Presidents Moi and Kenyatta. Kibaki has weaknesses but it is false to accuse him of power concentration or personalisation. The third cause is the feeling among certain ethnic groups of marginalisation. This is another travesty. If there are communities who are really marginalised they are the Somalis, Borans, Turkana, Samburu, Maasai, Arabs and Swahili. These communities were largely peaceful. The commission cowardly fails to address the real cause of the violence, which was the bungling of the result by ECK Chairman Samuel Kivuitu and his gang of commissioners. The fourth cause is the growing population of poor and unemployed youth. There is some latent validity in this argument. But the deceptive articulation of this issue was not the cause of the violence.Having glossed over the causes of the violence, the report zeroes in on how State security agents reacted to the violence. It is this aspect of the report that brings out all its flaws. It shows the callous handling of the evidence adduced by the security agencies and the cavalier dismissal of the same. It also shows that the findings of the commission were solely premised on the alleged evidence adduced by ghost witnesses conveniently assembled by the commission. PredictionFor instance even though the commission praises the role of National Security Intelligence Service (NSIS) for its prediction as to the likely causes of violence, the commission does not see the same issues as having caused the violence. A major indictment of NSIS was the commission’s view that in conducting opinion polls NSIS was engaging in active politics. Surely, research is part of its statutory mandate!It is when you come to the Kenyan police and the Administration Police that one gets an excellent perspective of the commissioners’ biases. Take page 369, for instance, where it reads: "In terms of preparedness for dealing with the post-election violence, the police were simply off the mark. There was, and still is, a lack of understanding and reluctance to accept that a comprehensive exercise in planning and preparation for the election was not only required but also constitutes a basic responsibility of the police."Let us test the veracity of this earth shaking indictment. According to the testimony of the Police Commissioner, there are a total of 27,555 polling stations in the country. Each polling station is manned by a minimum of two police officers. So when the violence broke out more than 55,000 or ninety per cent of the police force were disbursed throughout the country. According to evidence given by the Chief of General Staff, the army had to use all its logistical resources in transporting the officers from polling stations to where they were urgently required. Can a sensible commission reach the conclusion of the Waki commission in light of the evidence?Another indictment of the police is captured at page 403. The commission states that during the violence the police force did not do enough in fighting sexual violence. It reads: "It would have been ideal for the police to engage in some proactive strategies aimed at the awareness and prevention of sexual violence". Sexual violence against women, men and children should be fought by all. But to state that the police were not proactive in fighting sexual violence when the country was burning is quite ridiculous. As for any positive response by the security forces, the report dedicates a mere one and a half page in the 529-page report.Reading the report carefully will lead to the inescapable conclusion that the commission had a mindset to find culpable certain institutions and individuals. In fact not an iota of evidence adduced by Government officials is critically analysed.Embarassing aspectThe most embarrassing aspect of the report is the recommendation to establish what it calls the Kenyan tribunal. This aspect of the report shows the commissioners’ penchant for drama. Calling for the creation of a tribunal modelled along the lines of some regional tribunals without adequate rationalisations shows the naivety of the commissioners and their activist agitation.The report is entirely postulated on alleged evidence by phantom witnesses supplemented by the bias and prejudice of the commissioners. Its probative value is nil. It is designed to unravel Kenya. That a judge of the highest court in the land could recommend the creation of a tribunal with foreign judges is a clear testimony of his lack of faith in the judiciary. To rise to a higher principle, I challenge Justice Waki to quit the judiciary in vindication of the nobility of this recommendation.

Waki took Kenyans for a ride

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Waki took Kenyans for a ride

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