Waki Report – Commission of Inquiry into Post-Election Violence (CIPEV)

Waki Report – Commission of Inquiry into Post-Election Violence (CIPEV)
Executive Summary
The mandate of the Commission of Inquiry into Post-Election Violence (CIPEV)
was to investigate the facts and circumstances surrounding the violence, the
conduct of state security agencies in their handling of it, and to make
recommendations concerning these and other matters.
The Report comprises 5 Parts. Part I of the Report is an Introduction which
discusses the historical context of the violence; Part II is a narration of the
violence province by province. Part III deals with four cross cutting issues:
sexual violence, internally displaced persons, the media and the nature and
impact of the violence. Part IV deals with acts and omissions of state security
agencies and impunity; and Part V contains recommendations made with a view
to the prevention of future reoccurrence of large scale violence; the investigation
of alleged perpetrators; and how to tackle the culture of impunity that has
become the hallmark of violence and other crimes in the country.
Sadly, violence has been a part of Kenya’s electoral processes since the
restoration of multi party politics in 1991. However, the violence that shook
Kenya after the 2007 general elections was unprecedented. It was by far the
most deadly and the most destructive violence ever experienced in Kenya. Also,
unlike previous cycles of election related violence, much of it followed, rather
than preceded elections. The 2007-2008 post-election violence was also more
widespread than in the past. It affected all but 2 provinces and was felt in both
urban and rural parts of the country. Previously violence around election periods
concentrated in a smaller number of districts mainly in Rift Valley, Western, and
Coast Provinces.
As regards the conduct of state security agencies, they failed institutionally to
anticipate, prepare for, and contain the violence. Often individual members of
the state security agencies were also guilty of acts of violence and gross
violations of the human rights of the citizens.
In some ways the post-election violence resembled the ethnic clashes of the
1990s and was but an episode in a trend of institutionalization of violence in
Kenya over the years. The fact that armed militias, most of whom developed as a
result of the 1990s ethnic clashes, were never de-mobilized led to the ease with
which political and business leaders reactivated them for the 2007 post-election
violence. Secondly, the increasing personalization of power around the
presidency continues to be a factor in facilitating election related violence.
The widespread belief that the presidency brings advantages for the President’s
ethnic group makes communities willing to exert violence to attain and keep
power. Inequalities and economic marginalization, often viewed in ethnogeographic
terms, were also very much at play in the post-election violence in
places like the slum areas of Nairobi.
One of the main findings of the Commission’s investigations is that the postelection
violence was spontaneous in some geographic areas and a result of
planning and organization in other areas, often with the involvement of
politicians and business leaders. Some areas witnessed a combination of the two
forms of violence, where what started as a spontaneous violent reaction to the
perceived rigging of elections later evolved into well organized and coordinated
attacks on members of ethnic groups associated with the incumbent president or
the PNU party. This happened where there was an expectation that violence was
inevitable whatever the results of the elections.
The report concludes that the post-election violence was more than a mere
juxtaposition of citizens-to-citizens opportunistic assaults. These were
systematic attacks on Kenyans based on their ethnicity and their political
leanings. Attackers organized along ethnic lines, assembled considerable
logistical means and traveled long distances to burn houses, maim, kill and
sexually assault their occupants because these were of particular ethnic groups
and political persuasion. Guilty by association was the guiding force behind
deadly “revenge” attacks, with victims being identified not for what they did but
for their ethnic association to other perpetrators. This free-for-all was made

possible by the lawlessness stemming from an apparent collapse of state
institutions and security forces.
In general, the police were overwhelmed by the massive numbers of the attackers
and the relatively effective coordination of the attacks. However, in most parts of
the country affected by the violence, failure on the part of the Kenya Police and
the Provincial Administration to act on intelligence and other early warning signs
contributed to the escalation of the violence.
The post-election violence is also the story of lack of preparedness of, and poor
coordination among, different state security agencies. While the National
Security Intelligence Service seemed to possess actionable intelligence on the
likelihood of violence in many parts of the country, it was not clear whether and
through which channel such intelligence was shared with operational security
agencies. The effectiveness of the Kenya Police Service and the Administration
Police was also negatively affected by the lack of clear policing operational
procedures and by political expediency’s adverse impact on their policing
priorities.
The report recommends concrete measures to improve performance and
accountability of state security agencies and coordination within the state
security mechanism, including strengthening joint operational preparedness
arrangements; developing comprehensive operational review processes; merging
the two police agencies; and establishing an Independent Police Complaints
Authority.
To break the cycle of impunity which is at the heart of the post-election violence,
the report recommends the creation of a special tribunal with the mandate to
prosecute crimes committed as a result of post-election violence. The tribunal
will have an international component in the form of the presence of non-Kenyans
on the senior investigations and prosecution staff.

CIPEV Website

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Kreigler Report – Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007

Report of the Independent Review Commission on the General Elections held in Kenya on 27 December 2007

Kreigler Report
EXECUTIVE SUMMARY
On 30 December 2007, following announcement of the presidential election results,
violence broke out in several places across Kenya amid claims that the Electoral
Commission of Kenya (ECK) had rigged the presidential election. Sporadic eruptions
continued for many weeks, bringing death and destruction to thousands of Kenyans. An
African Union-sponsored Panel of Eminent African Personalities led by former United
Nations Secretary General Kofi Annan brokered a settlement which heralded a
government of national unity between the main political parties and a common
commitment to urgent constitutional reform. The settlement included the appointment of
two commissions, one to examine the violence and the other, the Independent Review
Commission (IREC), to examine the December 2007 Kenyan elections from various
perspectives.
In conformity with its terms of reference (ToRs) IREC now presents its findings and
recommendations, based on its analysis of the legal framework for the conduct of
elections in Kenya, the structure, composition and management system of the ECK and
its organisation and conduct of the 2007 electoral operations. The report specifically
examines the integrity of the whole electoral process, from voter registration and
nomination of candidates through voting, counting, transmission and tallying to dispute
resolution and post-election procedures, deals with the role of political parties, observers,
the media, civil society and the public at large, and comments on the independence,
capacity and functional efficiency of the ECK.
Main findings
Kenya’s constitutional and legal framework relating to elections contains a number of
weaknesses and inconsistencies that weaken its effectiveness. This legislation needs
urgent and radical revision, including consolidation.
The electoral management process as a whole needs revision
During the preparation and conduct of the 2007 elections the ECK lacked the necessary
independence, capacity and functionality because of weaknesses in its organisational
structure, composition, and management systems.
The institutional legitimacy of the ECK and public confidence in the professional
credibility of its commissioners and staff have been gravely and arguably irreversibly
impaired. It lacks functional efficiency and is incapable of properly discharging its
mandate.
The conduct of the electoral process was hampered and the electoral environment was
polluted by the conduct of many public participants, especially political parties and the
media.
There were serious defects in the voter register which impaired the integrity of the 2007
elections even before polling started:
• it excluded nearly one-third of eligible voters, with a bias against women and
young people
• it included the names of some 1.2 million dead people
Serious anomalies in the delimitation of constituencies impaired the legitimacy of the
electoral process even before polling started.
There was generalised abuse of polling, characterised by widespread bribery, votebuying,
intimidation and ballot-stuffing.
This was followed by grossly defective data collation, transmission and tallying, and
ultimately the electoral process failed for lack of adequate planning, staffselection/
training, public relations and dispute resolution.
The integrity of the process and the credibility of the results were so gravely impaired by
these manifold irregularities and defects that it is irrelevant whether or not there was
actual rigging at the national tally centre. The results are irretrievably polluted.
Main recommendations
All political role-players in Kenya should recognise that materially defective elections
accompanied by public violence will remain a feature of life in their country absent a
concerted and sustained commitment to electoral integrity by all Kenyans.
Radically reform the ECK, or create a new electoral management body (EMB), with a
new name, image and ethos, committed to administrative excellence in the service of
electoral integrity, composed of a lean policy-making and supervisory board, selected in a
transparent and inclusive process, interacting with a properly structured professional
secretariat.
Devise, implement and maintain appropriate executive, legislative and political measures
to enable the reconstituted or new EMB to initiate, popularise and sustain a national
commitment to electoral integrity and respect for the inalienable franchise rights of
Kenyan citizens.
Empower the EMB, by means of executive, legislative and political measures properly to
perform the essential functions entrusted to it under sections 42 and 42A of the
Constitution (delimitation and the conduct of elections and associated activities).
Adopt a new voter registration system.
Agree (as part of the constitutional review process) on an electoral system, which puts to
rest the continuous discussion about a new electoral system for Kenya.
Choose and implement the necessary constitutional and other legal amendments to give
effect to whichever of IREC’s recommendations are accepted.
Minority Opinion
Two members of the Commission held a dissenting view on some of the findings
reported in Chapter 6. Their opinions are presented in italics at the end of each of the
relevant paragraphs.

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KNCHR POSITION ON AMNESTY FOR ALLEGED PERPETRATORS OF POST-ELECTION VIOLENCE

KNCHR POSITION ON AMNESTY FOR ALLEGED PERPETRATORS OF POST-ELECTION VIOLENCE
I. Introduction
Recently, a debate in Kenya has raged regarding whether persons arrested in the wake of the post election violence should be prosecuted or granted amnesty. These persons comprise mainly youths from Rift Valley, Nyanza, Coast, Central and Nairobi Provinces who are alleged to have committed diverse offences between December 27th and February 28th. There are conflicting figures as to how many youths are being held and the offences they are alleged to have committed. According to a statement attributed to Agriculture Minister Ruto, around 12,000 youths are being held in police and prison custody following the violence. However, the police dispute this figure and claim that less than 1000 people are in custody.
II. The different shades of arguments
1. One argument made, supporting the case for amnesty, is that by doing what the youths are alleged to have done, they contributed to the formation of the grand coalition government and it therefore does not make sense to have the youths languishing in jail while the politicians they ‘fought for’ enjoy power. It has also been argued that holding the youths in custody discriminates against the poor since politicians who mobilized the youths to those actions are themselves enjoying their liberty.
2. Another argument advanced is that ‘host communities’ are unlikely to cooperate with the return of the internally displaced people (IDPs) while their own sons are languishing in jail. It is a compelling argument from the point of view that the situation is still volatile in some of the regions with some locals threatening not to allow the IDPs to return. Indeed violence has broken out since the return of some IDPs in places like Molo. However this argument is countered by those who say that Kenyans have a right to property and to settle anywhere in the republic and the government should not be blackmailed into releasing alleged perpetrators on the pain of communities sabotaging the IDP return programme.
3. A third argument, rejecting amnesty, suggests that granting amnesty to the suspects would encourage impunity and threaten the rule of law. This would be tantamount to abolishing civilized society and going back to the rule of the jungle. This would also encourage organized violence.
III. Amnesty in other jurisdictions Continue reading

AI – Kenya: Concerns about the truth, justice and reconciliation bill

Kenya: Concerns about the truth, justice and reconciliation bill


Introduction

Amnesty International has a number of serious concerns about the Truth, Justice and Reconciliation Commission Bill of Kenya (the Bill), published on 9 May 2008 and due to be submitted for debate in Parliament. (i)

Amnesty International recognizes the decision to establish the Truth, Justice and Reconciliation Commission in Kenya as an important first step towards ensuring accountability for past human rights violations and guaranteeing that victims of those violations know the truth, obtain justice and are provided with full reparation.

The organization welcomes the provisions in the Bill intended to ensure that the establishment and functioning of the future Truth, Justice and Reconciliation Commission (the Commission) comply with international law and standards. Such provisions are discussed below (see para1).

However, Amnesty International is seriously concerned about several aspects of the Bill, which do not comply with international law, standards and best practices. These include:

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NPI-Africa: Truth and Reconciliation Commissions in Africa: Lessons and Implications for Kenya

Truth and Reconciliation Commissions in Africa:

Lessons and Implications for Kenya

A Briefing Paper

By George WachiraI and Prisca Kamunge

This brief indicates some lessons and problems from TRC experiences in Africa and makes

recommendations for Kenya. Drawing on experiences from South Africa, Sierra Leone, Liberia,

Ghana and DRC, this brief cautions that previous TRCs have not been as successful as is

sometimes assumed While the South African TRC (SATRC) gave new prominence to TRCs (or

TJRC in the case of Kenya3), it has led to a fzxation on a particular form of transitional justice at

the expense of careful consideration of the goals sought and the context of the specific transitions.

For the Kenyan TJRC to succeed it will have to respond to some of the problems identified.

I LESSONS, PROBLEM AREAS AND RECOMMENDATIONS

Lesson and Problem Area 1:

TRCs Have not been as Successful as is often Assumed as tools

for truth, justice, reconciliation or national unity.

This is because:

o Victim-focused recommendations are ignored, delayed or only partially implemented.

o Citizens’ expectations are often outside the mandate and capacity of the TRC.

o Victims come before the TRCs in large numbers while perpetrators tend to stay away

o Perpetrators quickly get amnesty while the threatened prosecution is never followed up

o TRCs have often been politically-correct, focusing only on non-controversial truth

o Given their poor follow-up on recommendations, particularly those pertaining to

reparations to victims in the context of great material need, TRCs are increasingly viewed

as facilitating the very impunity they set out to reverse as perpetrators get away without

accountability while the victims’ needs are not met

Recommendations:

Ø Clear goals must be articulated and communicated to the public as to what the TIRC

hopes to achieve with regard to each of the three elements (truth, justice and reconciliation).

Ø A commitment by the government to implement recommendations and undertake

necessary follow-up should be secured up front.

Ø The TJRC Act should provide for an Independent Follow-up Mechanism with a clear

mandate to spearhead the implementation of the TJRC’s recommendations.

Ø The government’s commitment to cooperate and support the process and follow-up

should be secured through a presidential order, as recommended by the Makau Mutua

Task Force on the TJRC in 2003.

Ø Public expectations can be managed through a careful awareness campaign, wide

consultations and clear articulation of the purpose and role of the TJRC, and its relationship, synergies or linkages with concurrent commissions, competent institutions

and follow-up mechanisms (where applicable).

Ø In its legislation and design, the TIRC should have clearly stated linkages with other

related institutions or commissions such as the Office of the Ombudsman, the Lands

Commission or the Kenya National Commission on Human Rights. The framework for

such collaboration and linkages should be worked out before the commission concludes

its work.

Lesson and problem area 2: Overriding Expectations of Material Compensation

Kenya has to weigh carefully what the primary purpose of the TIRC is to be.

TJRC: NPI-Africa briefing-paper – Lessons and Implications for Kenya

NPI-Africa : TJRC – Truth and Reconciliation Commissions and Transitional Justice in Africa: Lessons and Implications for Kenya

NPI-Africa

A Peace Research Organization

Background Paper: April 2008

Truth and Reconciliation Commissions and Transitional Justice in

Africa: Lessons and Implications for Kenya

By George Wachira1 and Prisca Kamungi2

This Policy Brief is intended to contribute to the public debate on the proposed Truth,

Justice and Reconciliation Commission (TJRC) for Kenya. The content is informed by

ongoing research being carried out by NP I-Africa and the West Africa Network for

Peacebuilding (WANEP). Focusing specifically on respondent’s expectations and

perceptions, the research aims at drawing out lessons from transitional justice

experiences in Africa, in particular the increasingly popular TRC approach. The

research examined three countries that have concluded their TRCs or equivalents

(Ghana, Sierra Leone and South Africa), one that is in the process of implementing

(Liberia) and two that are still considering setting up TRCs (DRC, Kenya). Respondents

were drawn from a wide sample of victims, experts, former commissioners, civil society

actors, government officials, perpetrators, individuals who gave testimonies or submitted

statements to the commissions, relatives of victims, care professionals and researchers,

among others.

I. Introduction

The debate on the formation of a TRC3 in Kenya has been before the public for some

time. In the lead-up to the 2002 elections that marked the end of the 24-year regime of

Daniel Arap Moi, opposition politicians and civil society activists advocated for a Truth

and Reconciliation Commission (TRC) to address past human rights violations. After the

opposition’s victory, the new government appointed a Task Force in 2003 headed by

Prof. Makau Mutua to seek the public’s views on the formation of a TRC.4 The Task

Force recommended the formation of a Truth, Justice and Reconciliation Commission

(TJRC) to investigate:

Ø political assassinations and killings

Ø Massacres and possible genocides

Ø Political violence and murder of democracy advocates

Ø Torture, exile, disappearances, detention and persecution of opponents

Ø Rape

Ø Politically instigated ethnic clashes and

Ø Violations of economic, social and cultural rights

Continue reading

KNDR – Panel of Eminent African Personalities – Press Statement

PRESS STATEMENT

Panel of Eminent African Personalities

Nairobi, 29 April 2008

A useful and constructive session of the Kenya National Dialogue and Reconciliation took place today. It was chaired by Hon. Deputy Prime Minister Musalia Mudavadi in the absence of Ambassador Oluyemi Adeniji, who is in Addis Ababa on an African Union related mission.

The session dealt with Agenda Item Four on long-term issues and solutions; the Commission of Inquiry on Post-Election Violence; the Truth, Justice and Reconciliation Commission; the National Ethnic and Race Relations Commission; the draft Coalition Agreement; and the Constitutional Review Bill.

Continue reading

Independent Review Commission – Public Notice

Poll probe team asks Kenyans to assist

11-Apr-2008 – At a press conference in the Independent Review Commission’s (IREC) new locations at the Kenya International Conference Centre (KICC) in Nairobi, the head of IREC, Justice Kriegler, appealed to organisations and individuals to come forward and give evidence about the electoral process that led to the disputed election result. The seven Commissioners also made public a special Notice explaining the way forward for the investigation into the disputed 2007 Presidential Election.

DialogueKenya – Full document

Independent Review Commission – Further Public Notice on Evidence Submissions

IREC reach out to stakeholders for evidence, witnesses

22-Apr-2008 – IREC, the Independent Review Commission mandated by the President of Kenya to investigate the run-up to the 2007 elections, today called on stakeholders to submit memoranda with brief presententation on the facts and evidence that they intend to present to the Commission. IREC also asks stakeholders such as members of the public, public officers, political parties, candidates, the media, civil society, faith-based organisations, private sector groups and observers for names of all witnesses they want to appear before IREC. The memoranda must be in the hands of IREC by Friday 16th May 2008. IREC was established on 14 March after recommendation from the Kenya National Dialogue and Reconciliation mediators Continue reading

Critique of the KNDR Committees & Commissions

CRITIQUE OF THE MANDATE OF COMMISSIONS ESTABLISHED BY THE KENYA NATIONAL DIALOGUE AND RECONCILIATION (KNDR)

(Justin N. Kimani, Chege Muli and Moses Kirama)

Comments

1. It is acknowledged that the Independent Review Committee’s work is urgent in order to address the public anxiety regarding the December 2007 disputed presidential elections and has therefore, to work separately from TJRC which will concentrate on the historical aspects of the intension. However the Commission of Inquiry on the Post Election Violence and the Independent Review Committee’s methodology and indeed all the other Commissions involve the same Kenyan public for inquiries. This will aggravate and infuriate the publics and therefore erode confidence and co-operation of the interviewees.

2. In addition the mandate of the commission of inquiry in the Post Election Violence tends to overlap with the mandate of the IREC which covers all aspects of the 2007 presidential elections as enumerated under key activities of IREC.

3. In view of the negative public attitude towards commissions and committee’s of inquiry it is prudent to consider harmonizing the two mandates into one the findings of which should report to the TJRC

4. Whatever number of commission there are, they should be seen to complement the crucial post conflict peace-building stage of Reconciliation. This Reconciliation process has already been seriously jeopardized by the intransigence of the principal’s attention whose has been perceived by the public to concentrate on the power sharing, to the disregard and therefore, neglect of the continued suffering of the IDPs, who are looking up to then for Reconciliation and Settlement. The conduct of these commissions and committee’s will affect the future of the Reconciliation Process, especially with regard to giving of evidence, offer of repentance and forgiveness, which are critical to the success and sustenance of Reconciliation and long term peace.

5. It is critical that the range of skills, backgrounds and professional expertise of members of the commission include educated and experienced peace-building professionals.

6. The commissioners themselves should undergo peace workshops and seminars to acquaint themselves with concepts of conflict transmission and experience in other parts of the world especially Africa. Deliberate and concerted effort must be made to the public to instill lost confidence and trust on commissions due to the action on the part of the government on the findings. In this connection, assurance should be given on respect for commission’s time lines and implementation of recommendations made.

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