Waki has ensured his team’s effort does not go to waste by involving The Hague

On August 7, 1993, two years after being appointed as Kenya’s Attorney-General, Amos Wako was appointed as a Chairman of Panel of Imminent persons to inquire into a massacre in Liberia. The appointment was made by the UN Secretary-General Boutros Boutros Ghali pursuant to a resolution of the United Nations Secretary Council. Mr Wako was asked to investigate the massacre of 600 women, children and elderly persons who were IDP’s in a town called Harbel in Liberia.

In his report, which he submitted on September 16, 1993, Mr. Wako reported that the massacre had been carried out by units of the Liberia Armed Forces. He also found that the armed forces had attempted to  put blame on the rebels for the killings. But when it came to identifying the culprits, Mr Wako reported that he had evidence on only three soldiers who he named and recommended for prosecution. For the death of 600 people, only three low ranking soldiers were to face the law.

6,000 Deaths between 1991 and 1993 due to ethnic clashes in Kenya.

Between 1993 and 1999, various institutions investigated politically motivated ethnic clashes in Kenya. Notable of these were a select committee of the National Assembly baptised “the Kiliku Committee,” the Government standing committee on Human Rights, the Law society of Kenya and a Judicial Commission of Inquiry famously known as “the Akiwumi Commission”.

The reports of these various institutions indicated that more than 6,000 people died between 1991 and 1993 in well organised attacks. Each recommended prosecution of culprits, with the Akiwumi Commission laying out a list of suspects who could be prosecuted.

On February 19, 2001, the Criminal Investigations Department forwarded 70 files to the AG on various suspects of ethnic violence. He returned 40 of them, recommending further investigation. On October 1, 2002, the CID returned 19 of the 40 files after further investigations. Yet again, the AG returned some of them requesting further investigations.

As we stand today, no person has ever been prosecuted for organising the ethnic clashes of 1992 or 1997. Indeed, no action has been taken on the various reports issued regarding those killings. It makes one wonder: How many deaths does it take to prick the conscience of an Attorney General? How heinous must a crime be to receive the priority attention of the chief of law enforcement? How many years must pass for the victim in the grave before he is entitled to justice against his murderer?

The perpetrators of politically motivated ethnic killings in Kenya since 1992 have enjoyed such complete immunity from prosecution, that had they all come together and put one of their own as Kenya’s Attorney-General, they would not have enjoyed better impunity than they already have under Amos Wako.

In his report, Justice Philip Waki betrays a suspicion that Mr Wako’s ineffective handling of these cases is by design. He said in page 452 of his report: “The same process of investigation in respect of the Kiliku Report and the report prepared by the Standing Committee was no different. The Attorney-General would make the request under S.26 of the Constitution and the police investigators would dutifully report on the lack of evidence and difficulties associated with collection of it. In the end, the Attorney-General testified that he had done all he could within his powers to fight impunity”.

The learned judge makes his conclusion the next page: “In view of the lack of any visible prosecution against perpetrators of politically related violence, the perception has pervaded for some time now that the Attorney-General cannot act effectively or at all to deal with such perpetrators and this, in our view, has promoted the sense of impunity and emboldened those who peddled their trade of violence during the election periods, to continue doing so.”

But its not just Mr. Wako’s conduct that makes one suspicious. It is also his contradiction. For instance, in 2005, Mr. Wako pushed through the Cabinet the ratification of the International Criminal Court treaty.

It was ratified by the Government of Kenya on March 15, 2005. One week later, on March 22, 2005, he published the International Crime Bill to domesticate the provisions of the treaty and enable Kenya’s compliance with it. Today he is asking us, “for the good of Kenya,” not to allow ourselves to go to the international court.

A second contradiction is that throughout his tenure, Mr Wako has been accused of preferring criminal charges on flimsy evidence and shoddy investigations.

Shoddy job

Recently, the Chief Justice had to comment on the number of criminal cases being thrown out by the courts because of the shoddy job being done by the Attorney-General. The Chief Justice was quoted in a daily on October 22, 2008 saying: “It is dreadful to contemplate the encouragement it gives to potential offenders who reason that they would, without much ado, get away with their criminal acts.”

But when it comes to political leaders and ethnic murders, Mr Wako is especially particular not to charge any of them on incomplete investigation or less than concrete evidence.

On October 1, 2002, he issued a press release explaining: “The investigations are therefore still continuing in a number of cases. I assure the public that when I get an investigation file with sufficient evidence, provable in a court of law, which can establish a prima facie case, prosecution will ensue as a matter of course.”

Till today, the Attorney-General has been unable to collect such evidence. But when challenged about this inactivity at the Waki Commission, he instead blamed the Commissioner of Police who, according to the Kenya constitution, is his subordinate.

“Within my constitutional mandate, what I’ve done is to do what I ought to have done and that is to direct the Commissioner of Police to investigate.” According Mr. Wako, directing the Commissioner of Police to investigate the people named in the Akiwumi report proved that he was a strong Attorney-General.

Politically correct

“If you read the Akiwumi report and the rebuttal, a weak Attorney General would not have directed the Commissioner of Police to investigate all the people mentioned there. He would have said these are politically correct I would not investigate them, nor direct investigation of them and so on.” But Justice Philip Waki did not buy the story and continued to express his suspicions that Mr. Wako’s inactivity against the perpetrators of politically motivated ethnic murders was deliberate.

The judge said in page 449 of the report: “In passing, we express our doubts about the impotence expressed by the Attorney-General in enforcing the directives given to the Commissioner of Police. As stated earlier, the Constitution makes it mandatory for the Commissioner to comply, and the consequences of breach should be obvious”.

So what are we supposed to think when some government Ministers invite Mr Wako to guide us on the way forward on the Waki report? And how should we receive Mr Wako’s direction that he shall conduct new investigations on the Waki Report?

Light of day

We can be forgiven for thinking that the intention is to ensure that the Waki Report, like those of Kiliku and Akiwumi, will never see the light of day. Justice Waki has ensured that this will not happen. By handing over the matter to International Law, he has circumvented all the hurdles placed on the Kiliku and Akiwumi Reports.

We should keep our faith that one day justice shall be done and carry in our hearts the solemn words of Mahatma Gandhi when he said: “When I despair, I remember that all through history, the ways of truth and love have always won. There have been tyrants, and murderers, and for some time they can seem invisible, but in the end they always fall. Think of it – always.”