Waki Report - Kibaki and Raila in a dilemma as The Hague approaches

Despite an earlier promise by President Kibaki to urgently commence the process of implementing the Waki report, the cabinet last Thursday did not discuss the issue at all. The reason given was that the issue was not on the agenda paper for the day. And who sets the agenda for cabinet meetings? The president and Prime Minister, Raila Odinga, through the Secretary to the cabinet, Francis Muthaura. Meanwhile the panic by politicians is evident as the date for the suspects with ICC approaches.

While the real reasons for not discussing the report may not be known, serious questions are being raised by MPs opposed to the Waki report with a majority being Rift Valley Orange Democratic Movement Party (ODM) MPs and also some Party of National Unity (PNU) MPs. These questions, unless tackled in a sober approach might make the implementation of the Waki report almost impossible, especially in relation to the proposed prosecution of the key persons involved in the organizing and financing of the post-election violence. The Waki commission handed over a list of 10 individuals to Kofi Anan to be handed over to the International Criminal Court based at The Hague (ICC) if the coalition government fails to appoint a local tribunal for whatever reasons.

Various arguments have been advanced by politicians as to why the implementation of the report should go one way or the other. But mostly the arguments have been advanced for selfish self-preservation reasons.

Possible culpability of Raila and Kibaki argument

One of the issues being raised is the level of involvement by the principles in the Grand Coalition Government (GCG), President Mwai Kibaki and Prime Minister Raila Odinga, in the post-election violence. The prosecution of the key suspects, whether by a local tribunal or by ICC could be severely complicated if those suspected can argue and show that they acted on orders issued by the party leaders, in this case Kibaki and Raila.

As for ODM side, the argument is that immediately after the announcement of the presidential results for December 2007 elections which favoured Kibaki, Raila Odinga called upon ODM members to go on a mass action to force the reversal of the results. This resulted in levels of violence never seen in Kenya before, resulting in ethnic cleansing mainly in Rift Valley where certain communities suspected to have voted for Kibaki were either killed or forcibly evicted from their homes. They argue that the violence and evictions were spontaneous and not planned in advance.

The PNU side would argue that the Naivasha violence, where perceived ODM sympathizers were evicted, was necessitated by self-defense and the action was sanctioned, as some have argued, by State House. The reaction by the police force to the violence and possible killings by police can be presented as having been necessary to tackle the violence and prevent further loss of life and property, with the government’s (Kibaki’s) blessing.

This is why some MPs are insisting that for the prosecution to happen, the names of Raila and Kibaki should be on the list.

The Waki mandate argument

The other issue is that the MPs are claiming by handing the names of suspects over to Kofi Anan the commission exceeded its mandate. They say the names should have been given to the President and Prime Minister. Also they have roundly dismissed the entire report as collection of fiction, that it is based on rumours, hearsay and innuendo, as per Agriculture Minister and MP for Eldoret North, William Ruto.

But the sad thing is that they have gone ahead and introduced a political (survival) angle. They have used this argument, without substantiating, to cast the report as having been prepared with the sole purpose of hurting the political careers of some individuals. It is widely believed that William Ruto will have a go at the presidency come 2012 elections, which will mean competition with his current party leader and Prime Minister, Raila Odinga. His supporters argue that those calling for the full implementations of the Waki report, including Raila Odinga, have the intention of bursting his presidency bubble, hence their opposition to it. But one issue being ignored is that ODM, including Ruto who was in the team negotiating the coalition deal, enthusiastically backed the setting up of the Waki commission. Secondly, the list of names has not yet been made public, so why are these MPs agitated about it? Is this evidence that they are culpable in some of the crimes committed? Do they suspect that they are on the list?

The guilty are afraid argument

The different positions taken by Kenyan politicians on the report depend on the perception as to who the guilty party is. Initially, immediately after the report was presented to President Mwai Kibaki and Prime Minister Raila Odinga, both sides of the political divide, ODM and PNU, fully embraced the report and called for speedy implementation. But as soon as they had read the report positions stated to shift. Initially almost all MPs opposed the report, probably because most suspected that their colleagues were on the secret list. The President himself called for some form of compromise on the report’s implementation in his speech to the country during the Kenyatta Day celebrations. ODM parliamentary group (PG) roundly rejected the whole report, on suspicion that the list has some of its key leaders on the list. The party’s top decision-making organ, the National Executive Council, later reversed the PG position and called for the report’s implementation. Raila has been wavering between full implementation and rejection, depending on which side he wants to please. Eventually, most ODM MPs oppose the report's implementation while most PNU MPs are calling for its full implementation.

Sovereignty argument

The issue here is whether Kibaki and Raila went too far to surrender Kenya’s sovereignty to foreigners. While the role played by Kofi Anan through the African Union (AU) and the international community cannot be ignored, in the heat of the moment the two principles may have subjected the country to unnecessary international scrutiny. The action by Justice Waki to hand over the list of suspects to Kofi Anan instead of the President and Prime Minister is seen in this light.

Supporters of this argument insist that the work of the international community should have ended with the signing of the coalition agreement. The rest, including the commissions that were later set up (Kriegler and Waki commissions) should have been a matter of internal resolution, using internal mechanisms. Therefore, the argument goes, the involvement of Kofi Anan and the ICC in the implementation of the Waki report while we have capable institutions is first an expression of lack of confidence in our institutions and second, a surrender of our sovereignty to foreign powers. However, it is important to note that the ICC will take over the implementation of the Waki report if the GCG fails to constitute a local tribunal.

The coalition/party collapse argument

The argument is that the implementation of the Waki report will result in the collapse of the coalition government and also political parties. The ensuring differences over the report have put a lot of strain within political parties, mainly within ODM and PNU and most observers predict political party breakups and realignments very soon. The stains are also likely to spill over to the coalition government, given the different positions adopted by the coalition partners. Already, ODM’s NEC has taken a different position from that adopted by the PG. On the other hand, parties on the PNU side like ODM-Kenya, NARK-Kenya, FORD Kenya, have repeatedly adopted different positions and made decisions independently as individual parties.

The differences do not just relate to the adoption or rejection of the report. Even those who support its implementation are divided as to the process to be adopted. While Justice clearly indicated the process to be followed, some politicians are busy looking for ways to circumvent the ICC route. Others are proposing a local tribunal with Kenyan judges only. This is just to show that with time running out, there are wide rifts as to how to proceed with the report.

What is amusing in all this drama is that while the politicians adopt various positions on the report, they are not consulting the people they represent to get direction on how to proceed. Various opinion polls by radio and TV stations have shown that most Kenyans are for full implementation of the report. And they don’t care what the consequences will be.