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VAS

Disclose contents of unedited Waki report

COMMENTARY
By Joseph Mutua Ndonga | November 11th 2015

A few days ago, a motion seeking to reopen the debate on Waki report was finally tabled in Parliament and as expected, tempers flared out as the chairman of Justice and Legal Affairs committee Samwel Chepkonga moved to justify what prompted him to draft and file this motion.

The majority of MPs who opposed the motion were mainly drawn from ODM, an affiliate party in the Coalition for Reforms and Democracy (CORD).

Apart from questioning the timing of the campaign aimed at piling pressure on Justice Philip Waki and former ICC prosecutor Moreno Ocampo to lay bare the contents of the sealed Waki envelope, they argued that the revelations would reverse the gains the country has realised in the process of national healing and reconciliation.

We know hundreds of innocent Kenyans lost their lives and property worth billions of shillings was destroyed during the post-election violence.

Therefore, it is wrong to revisit the events that took place at the time because this would amount to ‘reopening the wounds that have already healed’. President Kenyatta and his deputy have so far done a commendable job in terms of fostering peace and unity in the country. We might water down these gains if we revisit the issue.

But the mover of the motion would hear none of the arguments. He stood his ground, arguing that Kenyans have a right to know the truth about the criteria and methodology applied by the Waki-led commission of inquiry into the post-election violence in compiling its final report. The question of how it compiled the list of those who bear the greatest responsibility for the violence has remained an issue of great concern.

For starters, the commission had prepared two reports. One highlighted the underlying causes of the violence and the measures and interventions that ought to be taken to ensure similar skirmishes do not occur again.

This report was handed to President Mwai Kibaki and his co-principal and Prime Minister Raila Odinga. But the one that contained the names of those believed to have planned and financed the violence was handed to former United Nations secretary general Koffi Annan.

Later, reports indicated Hon Annan, who led the a team of African Eminent personalities that helped to negotiate an end to the 2007/2008 violence, forwarded it to then ICC prosecutor Moreno Ocampo. Notably, the formation of the Waki commission was one of key recommendations in the final report of the Annan-led team. Justice Waki did not come out clearly to tell the country why he was keen to take that decision yet the law required him to present the sealed envelope to President Mwai Kibaki, the appointing authority.

Indeed, many argued that Kenya was not a failed state and hence his decision amounted to betraying the sovereignty of the Kenyan people.

However, Kenyans seemed to concur with Waki when he observed that the findings of his team did not mean that those mentioned were guilty of crimes associated with them. He recommended further investigations be conducted to find the information relayed was credible and relied upon to sustain the prosecutions.

As it would turn out, Ocampo relied heavily on the Waki report. He initially filed charges against six Kenyans - three from PNU and others from the ODM side - and put up a spirited fight to convince the Pre-Trial Chamber to confirm the cases.

Opinion would later be divided on whether he had taken the right step. The reactions of some of the international legal experts was swift. They argued the evidence he had gathered did not meet the threshold required to admit the cases of this nature. ICC is a court of last resort.

The Rome Statute’s provisions require the office of the prosecutor to initiate a process aimed at undertaking primary investigations. The charges against four Kenyans have since been terminated for lack of sufficient evidence.

To date, the question that has not escaped the public mind is: were the six Kenyans part of those appearing in the envelope? If yes, what criteria did Waki team use to pick them? Initial speculations indicated that it contained 24 names but later this narrative would change and the number dropped to 16.

Article 35 of the Constitution is clear that every Kenyan has a right to information. Yes, there are those who argue even if this is the case, we don’t need to know the contents of Waki report because this will not help the country to move forward. I beg to differ. We cannot talk of peace and unity if we rubbish and sabotage the efforts to search for truth and facts.

For now, it is interesting to note that some leaders have come out strongly to oppose the MP’s motion. What has really changed?

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