Saturday, November 29, 2008

Vomitting on Wanjiku's Shoes?

Wanjiku is mad! Very mad. Angry because she who who is the boss to Kenya's 222 lawmakers has been treated like trash. Her calls to the employees who barely 11 months ago were literally on their knees, promising that they would do anything she wanted while begging for her vote, have now changed tune, they will not take any action that puts them at risk of being as miserable as their employer.( not my words, but those of Dr. Boni Khalwale, MP Ikolomani- Chairman Public Accounts committee???????) One Kenneth Marende, the speaker of the 10th parliament, who thanks to the people of Emuhaya was accorded a good education, in his good English summed up the arrogance of the tenth parliament and its contempt for the Kenyan public describing an act by an MP to pay taxes from his allowances as an act of Philanthropy or charity. Clearly the majority of the 222 thugs , masquerading as Wanjiku's representatives in parliament lack not only sufficient philanthropy but ,I dare say, patriotism and a basic respect for the Kenyan people who placed them on the pedestal from which they are now vomiting on their employers shoes.(one Sir Edward Clay had a point)
Luckily for Kenya not all of the 222 have allowed the choke hold of greed to completely suffocate their conscience. The fact that Muthama's club of the willing is growing and may soon be above the 10 persons mark is clearly a ray of hope for Kenya. In the coming days, Kenyans will be able to clearly tell who are the few real sheep in the flock of Wolves disguised as sheep . This to the Kenyan public is a moment of truth: we will be able to clearly tell apart the true reformers in the 10th parliament from those who only pay lip service to reform during the day, while in the dark their hands are busy emptying the public offers they claim to protect.
This particular test is a tough one and puts on the spot those who have in the past claimed to fight for Kenyans. Where are the voices of the likes of the once firebrand reform activist James Orengo in this debate? Are the acoustic furnishings of his executive Ministers office too thick for the cry of the Kenyan public to get to him. Probably the problems at Ardhi house are too many, to the extent that he was forced to take his ears off the ground and loose touch with the Pulse of the Kenyan public , which he was once in touch with.
Where are the voices of the likes of Ababu Namwamba, whose pro- reform articles in the Sunday Standard, before his debut in parliament, resonated with the message from the Kenyan spirit. Have the huge perks now silenced you?
What happened to the Boni Khalwale who ably presided over Amos Kimunya's execution earlier this year, with allegations that Kimunya had forgotten the huge devide between public property and his personal property. In his case against Kimunya, Khalwale described him as the prince of Impunity .His comments on the floor of the house that the move to tax MPs would only make them as miserable as the people they represent, raises serious questions on his character. If Kimunya was the prince of impunity, it is clear that Khalwale is going for nothing less than the Kings throne in that kingdom!
That also goes for the other parliamentary veteran, who chairs Parliament's Trade committee one Chris Okemo. When one John Michuki's conscience made a rare appearance on the day the finance bill was passed, Okemo used the occassion to prove to all and sundry that it is several years now since he had his conscience amputated!
What happened to the Men of God, who to the minds of many Kenyans jumped into politics with a God sent mandate to infuse integrity into Kenya's murky politics? Hon Reverend Dr. Bishop Margaret Wanjiru, why are you missing in action on this crucial one?
Where is the man who from his service at the NCCK and consistency in the clamour for a new constitution, had been proposed as a compromise presidential candidate in the must win 2002 elections? Can the real Reverend Mutava Musyimi stand up? Or should Kenyans take his silence as confirmation that he was really never any different from the rest of the greedy lot?
It is from their bravery in the times of war that soldiers earn their stripes. Kenyans are now looking for the brave hearts who will stand with the people and earn their stripes in every matter of public affairs, this debate on MPs taxes included! It will not be business as usual for all those who in this times decide to sit on the fence, Kenyans are listening not just for what their leaders say but also for what they don't. There are those among the 222 who have no reputation to safeguard, they are greedy, unscrupulous and infamous for a myriad of vices- and proudly so. Their date with destiny is set, they would do well to learn from the 70% MPs kicked out of the 9th parliament. There are however those who have a reputation to safeguard, a name to salvage a promise to deliver to the Kenyan public who believed in you. Do not lie to yourselves
: your credibility and reputations are on the line here. Will you rise to the occasion and do what is right by the Kenyan public?

Saturday, November 22, 2008

The Insanity Of Kenyan Politics

The people of Kenya are trapped! Trapped in a long standing desire for change that never seems to bear fruit. That desire has an uncanny way of ending up in frustration on almost all fronts: from constitution, corruption, political greed and dishonesty, poverty, un-employment, illiteracy, disease…. You can complete the list.
This past week, two events occurred that capture this frustration. First (was the ruling by the high court barring the state from prosecuting former central bank governor Eric Kotut over the multi-billion shilling Goldenberg scandal. The three judges adjudicating the matter ordered that portions of the Goldenberg inquiry report implicating Kotut be expunged, in effect trashing the report.
While, for obvious reasons, I am not in a position to discuss the merits of the ruling, with specific reference to the Kotut case, the ruling does raise in the minds of Kenyan’s, serious questions on the fate of the Goldenberg saga. Will anybody ever be brought to account over the deliberate squander of billions of shillings from the Kenyan tax payer? Kotut follows in the footsteps of internal security minister Professor George Saitoti and former intelligence chief the late James Kanyotu who also had the courts clear their names over the saga. Kenyans had with the formation of the justice Samuel Bosire commission in 2003 hoped to not only get to the bottom of that matter, but also have the perpetrators brought to book and serve as lessons for future perpetrators of graft . It is now clear that all those hopes are now shattered. With the 3 rulings rubbishing the commissions report, it is highly unlikely that it will ever receive any serious attention especially in legal circles. All other suspects named in that report now have a clear and tested formula to get off the hook…. Just run to the courts! In short - the billions are gone forever and Kenyans would better get used to that!!!!
Another area that Kenyans yearn to see change is the greed and selfishness of politicians, especially those in parliament. On this end one Johnston Muthama MP Kangundo, gave Kenyans a reason to hope. Muthama has written to both Parliament and the KRA ordering that both his salary and allowances be taxed with immediate effect. If indeed this is not merely a populist stance, Muthama has clearly distinguished himself as one in 222! He has at least responded to the public outcry his parliamentary colleagues continue playing dumb to. His move however noble, may just end in frustrating the hopeful Kenyan. Muthama’s offer does not constitute an amendment to the law barring the taxman from touching MPs allowances. Will the Taxman disregard the law and take Muthama up on his offer? I believe the answer to that is a loud NO. Muthama in his benevolence is bound to remain captive to the will of his 221 greedy colleagues. Whoever said the law is an ass clearly had a point!
I believe that all is not lost though. At the risk of overly praising Muthama, whose motivation I am not in a position to vouch for, I believe his move bears a lesson; every Kenyan should pay close attention to. The old age lesson that may even sound cliché: if change will happen it must begin with me. The 10th parliament will never live up to its role as a reform parliament until each mp as an individual views himself as a reformer. It is only then that he will consider what is in the countries best interest before what is in his personal interest. If each of our 222 mps decided to deliver Kenya a new constitution at all costs, Kenya would have had a new constitution yesterday. The seriousness of Kenya’s anti corruption resolve will remain in question for as long as the average Kenyan is content to criticize the so called big fish, while he does not bat an eye when handing a traffic officer a bribe to get off the hook on his traffic offence. It may serve the Kenyan crying for change well to remember that - It is insane to do things the same way and expect different results!

Saturday, November 15, 2008


Vice President Kalonzo Musyoka on Friday confirmed Kenya’s worst fears: that the cabinet’s move giving the Waki report a wide berth during their last meeting was a deliberate spite on the Kenyan public and another display of the insensitivity and impunity now characteristic of Kenyan politicians. In Kalonzo’s words to quarries from journalists –“We will not discuss anything just because you think we should. You do not set the agenda for the cabinet!”
It would have served the VP well to consult his communications department, who hopefully have their ears closer to the ground than he does, before he stepped forward to field questions from the press. His spin masters would probably have informed him, that while he was officiating over the launch of the Orange mobile phone network on the 14th of October, Kalonzo’s peers at the top of Kenya’s political hierarchy, were on the hallowed steps of the Presidents Harambee house office, promising Kenyans not only the immediate implementation of the Waki report but its tabling and adoption at the cabinets next sitting.
It would appear that in jumping into bed with Mwai Kibaki, at the signing of the national accord and forming a government together, Prime Minister Raila Odinga caught Kibaki’s infamous flu- whose best known symptom is trashing MOU’s and reneging on promises. Why else would he be threatening to pull out of the grand coalition over the implementation of the Waki report? Since when did journalist’s queries on the cabinets silence on the report, comprise what Raila terms as silly questions he has no time for?
Kalonzo’s assertion that Kenyans must take notice that the country has many more serious issues requiring more urgent attention than the Waki report raises serious questions on the collective judgment of the countries top leadership. What are this emerging issues, whose urgency now supersedes resolving the issues at the root of the Kenya’s darkest moment. They must be much more weighty than the over 1000 lives lost between December 2007 and March 2008, They must mean much more than the over 300,000 persons displaced during that time, they must cost much more than the billions worth of property that went up in smoke during that period.
Has President Kibaki forgotten the heart rending scenes that nearly drove him to tears as he toured IDP camps early in the year. Is it lost on him, how many people were killed in his name, for barely supporting him or even sharing a tribal identity with him. Has Raila now forgotten the magnitude of the crisis Kenyans faced early this year in his name? Does he still feel that emotion that drove him to term the killings then as Senseless and even have his party write to the International Criminal Court at the Hague calling for intervention in February this year. Does it matter to him anymore, that a family of 8 were brutally murdered, locked up inside their house and set ablaze only because like Raila their mother tongue is Dholuo. Are the two leaders aware that while a political settlement was sufficient to resolve their difference, the chilling cold at IDP camps, memories of loved ones killed in cold blood, dashed lives and destroyed property and unresolved ethnic tensions still stand in the way of peace and cohesion for many Kenyans?
Are Kenya’s top leaders out of touch or plainly indifferent.


Friday, November 14, 2008

1. INTRODUCTION As shown below, the Waki Report, although weak in some respects, makes good recommendations for addressing the problem of impunity and the weakness of the institution of police in Kenya. These are based on the view that the crimes committed after the last general elections may, upon further investigations by a prosecutor, amount to genocide and crimes against humanity in International Law and should be investigated and punished by a special Tribunal for Kenya and, if necessary, by the International Criminal Court. The same crimes are punishable under Kenya’s Municipal Law. Under the principle of universality, all nations have universal jurisdiction to try those who are alleged to have committed crimes against humanity and/or genocide. Eichmann, a German citizen who participated in the Nazi extermination of the Jews in the 1930s and 1940s, fled to Argentina where he was arrested, was tried and convicted in Israel, in 1961. At his trial, he contended that the High Court of Israel lacked jurisdiction to try him as the alleged crimes had been committed in Germany, not in Israel. Applying the principle of universality of jurisdiction to try genocide and crimes against humanity the High Court of Israel rejected that submission. Its decision was upheld by the Supreme Court of Israel. Upon conviction he was executed. (See Henry J. Steinner, Phillip Alston, Ryan Goodman, International Human Rights Laws in Context, 3rd Edition (2008), pp. 1161-1167). The crimes described in chapters 3 to 6 of the Waki Report fit into the definitions of the crimes of genocide and crimes against humanity in customary International Criminal Law which all nations have jurisdiction to apply. Articles 6 and 7 of the Rome Statute of the International Criminal Court define the crimes of “genocide” and “and crimes against humanity” as follows:- Article 6 For the purposes of this statute, genocide means any of the following acts committed within intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such;- (a) killing members of the group; ( causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. Article 7 (i) for the purpose of this statute, crime against humanity means any of the following acts, when committed as part of widespread systematic attack directed against any civilian population with knowledge of the attack;- (a) murder; ( extermination; … (f) torture; (g) rape … or other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic violence, or other grounds that are universally recognized as impermissible under international law; ... (k) or other inhumane acts of a similar character causing great suffering or serious injury to body or to mental or physical health; (ii) all the crimes mentioned in (i) above are punishable under Kenya Municipal Law. The Waki Commission reasons that in view of the current weaknesses in the country’s justice system, a special independent tribunal manned by Kenyans and non-Kenyans should try the offenders. Besides, the violence which it describes vividly manifests distrusts, hatreds and political prejudices which would stand in the way of fair trials if the tribunal were entirely Kenyan in composition. The Kiliku and Akiwumi Reports reveal the magnitude of the decay of the country’s institutions. Anyone criticizing the recommendations of The Waki Commission must bear in mind the fact that the Waki Commission is the only institution which has systematically inquired into the causes and entire phenomenon of the 2007 post-election violence for more than four months. The Commission started its inquiries on 23rd Amy, 2008 and submitted its report to President Kibaki on 16th October, 2008. Those challenging its findings, therefore, can only be relying on anecdotal evidence which is of little value compared with the actual data which the Commission collected. In this article, it is demonstrated that the arguments advanced in opposition to the recommendations made by it are unconvincing. These arguments are that - (i) the Report is based on rumours and hearsay; no evidence allegedly exists for charging persons with offences described in detail in the Report! ; that it allegedly is a work of poor quality; however, a study of the evidence discussed in chapters 3 to 6 of the Report and of the International Customary Criminal Law shows clearly that this criticism lacks merit; moreover at page 17 of its Report it admits that further investigations are needed; (ii) the use of violence against citizens was allegedly politically and legally justified; that no crime was allegedly committed! this is a strange argument, firstly, because the Constitution is and was in force before and after the Post-Election Violence, and secondly, since 1897 when the Indian Penal Code became a part of the Law of Kenya, the acts described in the Report have always been known to be offences; as the Supreme Court of Israel stated when upholding the conviction of Eichmann in 1961, people in positions of the killers and rapists could not claim to have been unaware at the time of their conduct that they were violating deeply rooted and universal moral principles. In chapter 3, the horrible acts committed on some Kenyans in North Rift, Central Rift and South Rift are described in the Report vividly; in chapter 6, the grotesque of womanhood by armed aggressors is laid bare by the commission; below it will be demonstrated at length that this argument lacks merit too; (iii) punishment of those responsible for post-election violence will allegedly amount to discrimination against Kenyans from some regions in the country; however, in our Republic responsibility for an wrong is individual; by virtue of Section 82(9) of the Constitution no murderer or rapist can, in his defence, argue that he should not be punished other murderers and rapist have not been charged; the fear has no basis; the Commission’ recommendations are based on the evidence which it received; (iv) the Commission failed to identify as suspects unnamed alleged persons were also responsible for violence; this may be true but the prosecutor to serve the Special tribunal to be set up or international court prosecutor will do further investigations and charge all those who committed offences; the Commission admits at page 17 of its Report that its Report is not complete; (v) the post-election violence is allegedly a matter which concerns Kenyans only and, consequently, the involvement of the international community in solving the problem is not justified; the international community allegedly was needed only when the violence was at its height and also in facilitating negotiations; this is untrue because of two reasons - firstly, as seen above, according to Customary International Criminal Law the offences of genocide and Crimes Against Humanity are crimes of universal jurisdiction i.e, they can be punished by any nation anywhere it occurs because they are wrongs against the entire humanity; secondly, the Kenyans sought and obtained the assistance of the international community to handle their crisis; among other things the United Nations has funded the Kriegler and Waki Commissions; the involvement of the International Community in the Kenyan affairs is not complete since the cause of the post-election violence, impunity has not been addressed; (vi) the prosecution of those responsible will open wounds which have allegedly healed; the wounds inflicted by the violence have not healed; those who murdered or maimed others are still free; (vii) prosecution of offenders will kill ODM; the rule of law on which punishment of offenders is based demands that the law be applied equally to all political parties; if ODM or PNU is destroyed in the process, so be it; besides this assumes that the majority those who are responsible for the violence are supporters of ODM; the truth will be known after the prosecutor finishes the investigations. The Waki Report has weaknesses but these are fewer than its strengths. The following are the weaknesses of the recommendations;- (i) they concern addressing the problem of impunity and a weak police force; the Commission did not see the obvious fact that the post-election violence was caused by the poor Constitution which has grown progressively weaker and weaker since 1960s; (ii) the Commission did not appear to appreciate that the true solutions to the country’s problems is re-writing of the Constitution; (iii) the Commission ignored the contributions of the Kenyatta and Moi administrations and ODM and ODM-K to the post election violence through their divisive campaigns of 2003-07; (iv) unconsciously, the Commission made unjustified criticism of President Kibaki and indirectly exonerated the other political leaders; (v) the Commission manifested an inadequate grasp of the essence of a market economy. PART 1 – THE POLITICAL AND RATIONAL BASIS OF THE APPOINTMENT OF THE WAKI COMMISSION 2. The Commission was appointed by President Kibaki upon the recommendation of the National Dialogue Team which deliberated on the way to end the violence and prevent its repetition in future. This objective comes out clearly from its terms of reference which were – (a) to investigate the facts and surrounding circumstances related toacts of violence that followed the 2007 presidential elections; ( investigate the actions or omissions of state security agencies during the course of the violence and make re commendations as necessary; (c) to perform any other task that the Commission may deem necessary in fulfilling the foregoing terms of reference; (d) recommend - (i) measures to be taken to prevent, control, or eradicate the occurrence of similar deed in future; (ii) measures with regard to bringing to justice those persons responsible for criminal acts; (iii) measures to eradicate impunity and promote national reconciliation in Kenya; (iv) such other legal, political, or administrative measures as the Commission may deem necessary. Other recommendations of the same National Dialogue Team are the power sharing agreement signed on February 28, 2008 by President Kibaki and Prime Minister Raila Odinga, the two Bills – the Constitution of Kenya Amendment Bill, 2008, and the National Accord & Reconciliation Bill, 2008 - which were passed on 18th and 20th March, 2008, respectively, and the setting up of the Kriegler Commission. Between January and April 2008 the National Dialogue Team deliberated on all the measures which were to restore the country into its proper footing. In a statement issued to the press on 4th February, 2008 by members of the Dialogue team, they stated that the object of the National Dialogue and Reconciliation was “to resolve the political crises arising of the disputed presidential electronic source as well as the ensuing violence in Kenya in line with the agreement between His Excellency Mwai Kibaki and Hon. Raila Odinga as publicly announced on 24th January, 2008 and reaffirmed on 29th January, 2008”. Since the Waki recommendations are the means of resolving the country’s political crises, why are several Members of Parliament opposed to the resolution of the country’s political crises? The members of the Dialogue Team were the Hon. Martha Karua, Hon. Sam Ongeri, Hon. Mutula Kilonzo, Hon. Moses Wetangula, Hon. Musalia Mudavi, Hon. William Ruto, Hon. Sally Kosgei, and Hon. James Orengo. The terms of reference of the Waki Commission preceded on the views that both PNU and ODM agreed that – (a) those who engaged in the violence following the last General Election broke the country’s laws and possibly customary international criminal law which has made genocide and crimes against humanity, offences which are punishable by the International Criminal Court, had to be brought to justice; ( the violence occurred because of impunity; those who had been involved in similar violence described in the Kiliku Report of 1992 and the Akiwumi Report of 1999, had not been punished; (c) the country must prevent control or eradicate occurrences of similar deed in future. The fundamental question which arises is as to what ODM is committed now having rejected the Waki Report in toto on 30th October, 2008. Members of Parliament in the PNU Coalition must, in view of the foregoing argument realize that they have no option but support the recommendations of the Waki Commission. PART 2 – THE BENCH MARKS OR YARD STICKS TO BE USED IN EVALUATING THE RECOMMENDATIONS OF THE WAKI COMMITTEE As I demonstrate below, the seven bench marks to be used in evaluating the recommendations of the Waki Committee are - (a) the purpose for which a democratic government is established everywhere; this is a universal norm; the post election violence created a situation where the government was absent for some time; ( the nature of the citizen’s obligation to obey the laws of the land in a democracy; this is also another universal norm; (c) the binding nature on the citizen of the decisions taken by the institutions of a representative government; this is a third universal norm; (d) the international customary criminal law which demands that those who commit the offence of genocide be punished by either an ad hoc tribunal or the newly established International Criminal Court; this is a fourth universal norm; (e) the performance of the institutions of governance established by the country’s Constitutions since 1963; this is a fact which can be established through empirical evidence; however, the consensus that there is a need to re-write the Constitution means that there is what lawyers call “agreement as to the facts”; (f) the problem of impunity in Kenya; this is documented in the Kiliku and Akiwumi Reports; (g) the specific terms of reference of the Waki Commission. The post-election violence occurred because the government institutions established by the country’s Constitution failed to discharge their constitutional duties. Numerous illustrations of this failure are to be found in chapters 3 to 6 of the Waki Report. In a democracy of the kind which the country established through the Constitution which it adopted in 1963, the major purpose of government is to protect the life of the individual and his property. This truth is to be gathered in the country’s Bill of Rights which is contained in chapter V of the Constitution. This Bill describes the “good life” enjoyment of which every Kenyan is guaranteed. Its components are the guarantees that the individual will always enjoy the rights to life, to liberty, not to be held in servitude, not to be tortured or subject to inhuman or degrading treatment, not to be deprived of property except in accordance with the due process of the law, not to be subjected to illegal and arbitrary entries and searches of one’s property, to the protection of the law, to freedom of conscience and of thought, freedoms of expression, association, and of assembly, the right to reside and own property in any part of the country, the right not to be discriminated against, and a the right to obtain redress from the High Court in the event of a violation. (See sections 70-84 of the Constitution). Those involved in post-election violence made a mockery of that guarantee. About 1,200 people lost their lives, many suffered physical and mental injuries, whilst about 500,000 were driven out of their farms and business. The modes of killing varied from shooting citizens with guns, cutting up others with machetes, and shooting with bows and arrows. In chapter 6 of the Report, the Waki Commission gives a graphic account of the violence which was meted out to women by criminal elements in the security agencies and other private attackers. In conceptualization, the democratic government everywhere must be strong enough to oppose any threatened attack on the Constitution by any political party or section of the society. The Kenya government has not, since 1991, offered to provide that elementary protection! The Kiliku, Akiwumi and Waki Reports document the failure of Government Institutions to protect its citizenry. This explains our shame that since 1991, there are Kenyans who have been excluded from their land. To them, the guarantee under section 81 of the Constitution – that they have the right to live, reside and own property in any part of the country – has been ringing hollow since 1991. This ideal stated above was not upheld soon after the last general election. The best practice of this ideal is the defence of the US Constitution by President Abraham Lincoln between 1861 and 1865 when he waged a war against the southern States which wanted to secede or withdraw from the Union and establish another Republic. Although he was assassinated in 1865, the defence of the Constitution was accomplished. The United States remained one nation to become the super power it is today. In Kenya, the police, military, and the provincial administration are the ones charged by the Constitution and such Acts of Parliament as the Police Act (Chapter 84 of the laws of Kenya), and the Armed Forces Act (Chapter 199 of the laws of Kenya). As seen above, the above-quoted terms of reference required the Commission to “investigate the actions and omission of state security agencies during the course of the violence”. The Waki Commission investigated the actions of the police, the military, Provincial Administration, the National Security Intelligence Service (NSIS). If these agencies had discharged their constitutional duties, there would have been no post-election violence. The evaluation of the recommendations of the Waki Commission must be based on two other yardsticks or benchmarks of a democracy. The first benchmark is that everyone in a democracy is deemed to have agreed to have applied against him/her criminal and other laws of that democracy. The criminal laws include those which make it an offence to kill, rape, assault or maim a person, burn, or destroy or damage another’s property. This is an absolute obligation. Those who killed or and maimed other Kenyans breached that constitutional duty. Before and after the post-election violence every Kenyan was and still is obliged to obey all the laws. There is no justification whatsoever for the killing and maiming which took place. The best argument that mankind has known in defence of this benchmark is that of Socrates in the well-known Plato’s Dialogue in Crito in 339 BC. In those dialogues, Socrates made out, in 339 BC, a case in the modern democracy for every citizen to obey the laws [including those which he does not approve of, including some provisions of the Constitution which hurt him/her, just before he took poison and died. Following an unfair trial held that year undertaken by a flawed judiciary, he was found guilt for corrupting youth and sentenced to death. The death sentence was, in Greece of those days, carried out through administration of poison. Whilst in custody, his close friend, Crito, organized for Socrates’ other friends to bribe prison warders so that they may take Socrates out of Greece pointing out the injustice in his trial. He rejected the offer and took poison, arguing that the citizen has entered into a contract with the state whereby it protects him and his family through enforcement of laws and he/she, on his part, agrees to obey all the laws, that the safety of the individual and his/her property are protected by the laws and, consequently, must accept the judgment of the courts, even when he/she considers them to be unjust or wrong; (see Crito in The Dialogues of Plato, Bantum Books, New York (1986) pages 36-41). It is clear that those who founded this nation, in 1963, acted on this view of a citizen’s constitutional duty. This same duty has now been recognized in customary international law. Mankind believes that by his very nature – he does not need Acts of Parliament to tell him so – any person who kills members of a group, causes serious bodily harm to members of the group, deliberately inflicts on the group conditions calculated to bring about its physical destruction knows that he is committing a crime known as genocide. This crime was first recognized at the Nuremberg trials where those who exterminated the Jews in Germany were tried and punished in 1945-46. Recently, the United Nations established ad hoc tribunals for Yugoslavia, Rwanda and Sierra Leone to try those who had committed crimes of genocide in those jurisdictions. In 1998, there was adopted at a conference held in Rome the statute for the international Criminal Court which came into force in 2002. It is now called the Rome Statute of the International Criminal Court. This is now the permanent court for trying those suspected or having committed genocide and crimes against humanity. Those who are opposed to the implementation of the recommendation of the Waki Commission must now realize that they reject the rule of law as the foundation of the modern states and also mankind’s conviction that those who commit genocide must be tried and punished, if the world is to be a safe place to live in. It is not open to any Kenyan who has been protected by laws enforced by the judiciary in force over decades and acquired properties which are protected by laws which are enforced by Judges to argue that there were any circumstances which justified the suspension of laws. In any case, in the modern democracy, neither the executive arm nor the legislative arm of the government is allowed by the Constitution to suspend the operation of they country’s laws. How can the citizens claim an exception! In a democracy, every citizen is taken to have agreed to serve as a suspect and to be tried if the law enforcement agents have reasonable evidence to show that he/she has committed an offence. Those opposed to the recommendations are opposing democratic principles which are part of our heritage. Again, democracies presume every suspect to be innocent until proved guilty. In the Kenyan case, the presumption is written into section 77(2)(a) of the Constitution which provides as follows, Every person charged with a criminal offence – (a) shall be presumed to be innocent until, proved or has pleaded guilty. A democracy is not based on perfectionism of human beings and their institutions. It is accepted that some innocent people will, from time to time, be wrongly charged with offences and that where this happens they will count on an independent judiciary to vindicate their innocence. Everyone in a democracy, therefore, agrees to serve as a suspect should the circumstances of the occasion so demand. It is clear then from the foregoing account that those advocating a rejection of the recommendations of the Waki Commission are urging us to abandon the well-tried tenets of democracy and of the rule of law. The second benchmark is the obligation of the individual in a democracy to be bound by the decisions of the majority. The democratic government anywhere is a government by the majority through the elections through which they elect their leaders. It is a representative government. At a general election, the citizens put in place the executive and legislative arms of the government. Because the judiciary is independent, it is a permanent institution. The judicial officers are not elected every five years. The President is, together with the Parliament, given the power to declare a war in which the citizens fight and may lose their lives. In a presidential system like those of Kenya and USA, the individual elects the chief executive – the President - and also his/ her Member of Parliament to serve in the legislature for five years. In democracies, politics is conducted through political parties which are at liberty to form coalition governments. The executive arm of the government under the Kenya Constitution has two components, namely - (i) the political component made up of the President, the Cabinet, and Assistant Ministers; and (ii) the Public Service which serves the political leadership. In Kenya, the individual is taken to have voted for Members of Parliament sponsored by either the PNU coalition or ODM. He is therefore, bound by the decisions of the government of the grand coalition. The grand coalition government having decided that those who were involved in post-election violence must be held responsible for their criminal acts, the individual is bound by that decision. The Members of Parliament who are opposed to the recommendations of the Waki Commission claim not to be bound by the decisions of their government, which is absurd. The Commission was made up of three commissioners namely, Hon. Mr. Justice Phillip Waki, Mr. Garvin Alistaire McFadyen and Mr. Pascal K. Kambale. The Commission discharged its duties and submitted its report to the President on 16th October, 2008. The recommendations, implementation of which is opposed by some members of Parliament and Ministers, are contained in chapter 13 of its Report. In chapters 3-6, the Commission describes vividly the different forms which the violence took in different parts of the country. In chapter 2, it discusses the general character of that violence from historical and constitutional perspectives. In chapter 1, it explains how it did its work and gives the limitations of its recommendations. This it does because the time constraints did not permit it to make as extensive investigations as it would have liked to do. At page 17 of its Report, it states those limitations as follows, The evidence the Commission has gathered so far is not, in our assessment, sufficient to meet the threshold of proof required for criminal matters in this country; that it be “beyond reasonable doubt“. It may even fall short of the proof required for international crimes against humanity. We believe, however, that the Commission’s evidence forms a firm basis for further investigations of alleged perpetrators, especially concerning those who bore the greatest responsibility of the post election violence. In the nature of things, the premature sabotage or other adulteration before investigators have an opportunity to assess it. In chapter 11, of the Commission discussed the phenomenon of impunity dating back to 1990s when no action was taken against those who committed similar violence as the country approached the 1992 and 1997 General Elections. It relied a great deal on the inquiries undertaken, in 1992 by the Kiliku Committee, and between 1998 and 1999 by the Akiwumi Commission. These three reports now contain the proof that our institutions are unable to enable Kenyans to realize the “good life” by their Constitution. In chapter 12, they make the following recommendations:- (1) That the persons responsible for the criminal acts which followed the last elections be tried by either a special tribunal established for this purpose by new law, or by the international Criminal Court, and if found guilty be punished; (see pages 475-478 of the Report); and (2) That the institutions of the Kenya Police and Administration Police be reformed immediately; (see pages 481-484). It found that generally speaking, the military had discharged its constitutional duties in accordance with the law and, therefore, did not make any recommendations touching it. At page 382, it praised the military for its work. It stated, The Commission’s view is that the military performed its duty well, a position that appeared to be shared with many commentators. What is surprising is that no military support was initiated as the circumstances of the situation dictated that more resources of this nature applied quickly and judiciously may have reduced the impact, extent and duration of PEV. The Akiwumi Report rightly observed that the military should have played a bigger role in tackling those who have attacked the Constitution since 1991. At page 46 of its report titled Report of the Judicial Commission Appointed to Inquire into Tribal Clashes in Kenya [popularly known as the Akiwumi Report], that Commission made the following observations, It is interesting to note that even though exhibit 30 was copied to the Chief of General Staff, Department of Defence, there was a marked reluctance to use the Armed Forces in crashing the tribal clashes. Whilst the principal role of the Armed Forces is to protect the country against external threats to security, it is well known that the military have been deployed on several occasions to deal with internal acts of banditry and other criminal activities as well as other situations that affect the internal security of the country. The reasons why the Waki Commission recommended that the special tribunal to try the offenders of post-election be established outside the current justice system are clear from its report. They are three. The first one is to be found in chapter 11 in which the principle of impunity is discussed. It is that whatever good reasons there may be – if they exist – the country’s justice system has been unable to address the impunity since violence on a large scale broke out in 1991 when some Kenyans were championing the divisive and dangerous political project of promoting ethnic nationalism known as majimboism, inspired by the kind of life which existed in Africa before the establishment of the colonial rule. That justice system is made up of the following institutions;- (i) the police; (ii) the investigatory and prosecution system of the country; (iii) NSIS; (iv) the courts. The Akiwumi Commission diagnosed the same weakness in its report. At page 41, it describes the position in these institutions as follows, The lenient attitude of the security organs described above and which contributed to the effrontery of the attackers and to the length of incidences of the tribal clashes which could have been curtailed if the security organs really wanted to do so. The second reason is the decay of the provincial administration or public service as a whole over the years rendering it ineffective. In chapters 3-6 of the Report, the Commissioners give numerous illustrations of its inability to prepare for the crises which it had been advised by NSIS was coming. Of the police, they say this at page 371, In terms of preparedness for dealing with the post-election violence, the police were simply too far off the mark. The Waki Commission might not have understood the origin of that decay and how widespread it is in the Kenyan polity, but their observations of its existence and limiting effects are correct. Since 1980s, political scientists have observed that the politicization of the country’s public service started in 1966 when the KANU government of the day enlisted the support of the regular police, the special branch and the provincial administration to fight against the opposition party of the day – the Kenya People’s Union (KPU). [See Sussane DeMueller, Government and the Opposition in Kenya, 1966-1969 (1984) Journal of Modern African Studies, 392, and Frank Furedi in The Mau Mau War In Perspective, Heinneman Publishers Kenya (1989)]. At page 413 of her article, Susanne D’Mueller illustrates the politicization of the public service with the following telegram which the Office of the President sent to Provincial Commissioners in 1966 with a view to enlisting their support in KANU’s political fight against KPU, Licenses to hold public meetings to be issued to KANU members only. stop. Seven days’ notice required. stop. Permits issued to non-KANU members to be cancelled with immediate effect. The Waki Report has many illustrations of police officers who either joined attackers in their criminal activities or others who denied assistance to Kenyans whose political views and ethnicity they disapproved of. The third reason is the combination of distrusts and hatreds which politicians have fanned over time and sharp political differences which could compromise fair trials if the tribunal to try the suspects were differently constituted. This writer, therefore, urges PNU and ODM Members of Parliament who have opposed the adoption and implementation of the Waki Report and recommendations to review their positions in the light of the ideals of the humanity, democracies everywhere and of the founders of this nation. DR. GIBSON KAMAU KURIA, SC. * Advocate of the High Court of Kenya, Senior Counsel,