Legal Commentary

Waki Commission - options beyond ICC/tribunal?

By Ory Okolloh

My two cents on options for civil society…

First, many organizations (some of who testified before Waki) have powerful testimonials / evidence etc. from that period…I suggest bringing these back to the forefront via media etc- personalize the stories (so that it is not become just an ODM vs PNU story)…young lives were snuffed out, parents who lost a child; victims of police violence; victims of sexual violence, IDPs who are still being neglected and so on. Most of this information is sitting in fancy reports that the average Kenyan has not seen…remind people of what happened, put a human face to what happened…it might be a controversial strategy as far as “inflaming the situation” but frankly it seems like in Kenya the only way to avoid inertia when it comes to political change is a crisis.

Second, why wait for a truth and reconciliation law to be implemented? Maybe start a parallel process led by civil society focused on communities - think a gacaca type process where the focus is on addressing the “smaller fry” as it werem but at the same time build pressure on the need for the big wigs to also also be subject to a process of some sort.

Third, what civil society can do is, if things to get to the stage of an ICC referral (and even for a local tribunal), is work to build a coherent case (think PR really) for why justice is necessary and why the process won’t be “costly” as far as reigniting tensions etc. and also help build a case that can stand up in court - if (big IF) Moreno and co. come knocking looking for answers civil society should be ready with CONCRETE stuff. Pressure must be sustained in a visible manner, maybe with a weekly action - think Mothers of Plaza de Mayo. Attempt private prosecutions, even though Wako will kill that story. Anything (but press conferences and workshops in hotels about the Waki report) to keep the pressure up. It is important to note that the ICC and all other UN-type options require one to first demonstrate the exhaustion of all domestic remedies.

Fourth, international options beyond ICC (hat tip Wangui for input!)
- Pursue procedure 1503 with the office of the UN High Commissioner of Human Rights, especially in the cases where violence was committed by the State apparatus e.g. police. It is a cumbersome process, but taken quite seriously by the UN. Resource-wise, I’m sure this could be pitched to law school clinics in Kenya and internationally for pro-bono assistance in putting a complaint together.
- For the gender-based violence, submit a complaint to the Commission on the Status of Women.

Any other thoughts out there?

Full post as published by Kenyan Pundit on October 27, 2008 (boomark / email).