The Waki Report is not a legal binding document. Its contents should not be seen to carry a legal face. On the other hand it is but a tool used to gather and come up with recommendations and proposals on post-election violence. It is also important for Kenyans to consider the ‘circumstances’ that led to the electoral violence before passing any legal judgment on suspects who are believed to have propagated the violence. Such a focus would help the country heal better than to later on carry the ‘burden’ of the post-election violence in years to come. It should also be noted that the Waki Report contains electoral, historical, political, socio-cultural, economic, ethnic and not only legal issues.
Legally, it would require an amendment to the constitution that calls for 145 MPS from the current 222 to set up the proposed special tribunal. The Commission of Inquiry into Post-Election Violence (CIPEV) recommends the tribunal to consist of lower and appeal courts together with prosecution and defense wings. This limits the judiciary’s participation in trying the suspects thus limiting fair judicial trials on those charged. To be fair to the suspects the constitutional amendments should consider the “circumstances” that led to the violence and other factors including electoral, political and history of tribal clashes every other election time.
During the Nairobi University Graduation, Dr. Koffi Annan, while giving his speech, reiterated that institutions of higher learning should help in conflict resolution through research studies. This makes me differ with the Vice President, Kalonzo Musyoka’s assertion that ECK Chairman, Mr. Kivuitu should not be held responsible for the post-election violence. The VP seems to belong to the school of thought that still believes that people don’t make an office or institution. What ECK lacked was a capable ‘functional and responsible’ chair for people make institutions work and any error committed by any of its officials contributed to the inefficiency of the entire institution.
Kivuitu and Kibaki are still liable and as guilty as other ‘suspects’ and history would haunt them harshly. Going back to the VP’s assertion, I challenge him to state what makes a country different from a nation. If he fails to see the significance that people make, he should resign from his seat and apologize to his constituents who voted for him.
We need to make constitutional amendments to deal with individuals, who after being given responsibilities, weaken well-established functional systems due to partisan interests. In fact our executive and cabinet support system, if we ever have, is ineffective. Poor national coordination within the ‘coalition ministries,’ the office of the Prime Minister and the Head of Civil Service is an example.
Unfortunately, we arrogantly blame such on our ‘systems’ be they political, electoral, economic and socio-cultural. What we lack is a strong accountability framework that does not allow performance in office to be tied to politics or partisan interest. This ought to be coterminous with the president’s office as the lead national institution.
Corrupt systems keep information including electoral, out of the public domain. Kenya ought to develop an evaluation culture to help support national policy debates and demand for accountability. Our current climate of electoral performance is more political and partisan to serve a few. Setting up citizen charters (Civil Society and others) and where contracts between government and citizen groups are involved, would help improve all public services and make participation by citizens more response.
The Kenyan culture of selectively associating accountability with blame should end. Kenya needs credible and legitimate leaders who make the nation stand as one.