Legal Commentary

More thoughts on the Waki Commission

By Ory Okolloh

I have been following a couple of discussions on mailings about how civil society / concerned citizens should proceed in the aftermath of the Waki report. There is general agreement that this is a good opportunity to address the culture of impunity (especially among Kenyan politicians), and there is little faith that the politicians will do little more than let the recommendations fade into distant memory…probably by tying the recommendations to a new constitution, which will supposedly address the issues raised comprehensively blah blah BUT not before 2012.

Beyond that it has been hard to find any imaginative thinking about how we outside the political circles should at least do our part to keep the pressure on for some kind of action…I mean is a press conference really the best civil society can come up with (and I care because if the post-election crisis doesn’t get us to change things fundamentally I shudder to think just how far we need to sink as a country the next time around). So despite the fact that I have 99 other problems to think about (channeling Jay-Z), I’ve found myself slowly dragging my lawyer hat out of the closet and dusting it off…what options are out there, assuming that the politicians will be politicians?

I’ll start with some reality checks…

First, it is important to remember that the recommendations are just that - recommendations. The coalition government can ignore them.

Second, even if the government succumbs to pressure and goes the tribunal way, there is no immediate indictment of the named individuals as the trusty-always-there-to-help-clean-up-government-shit A-G Amos Wako reminds us. Beyond that expect lots of razzle dazzle distractions, court cases challenging the constitutionality of any such tribunal, and a process that would be like the Goldenberg Commission on steroids with the requisite hook-ups for lawyers.

Third, everyone assumes that the ICC will be an automatic storo if the local tribunal fails to take off. I think the prosecutor is unlikely to pick up the case mainly for political reasons than anything else. Notice how EVERYONE is insisting that any follow-up be local, the government and those who fear indictment are already building a PR case around no outside interference etc. Expect the clarion of voices challenging any ICC process to build up among the trusty impotent AU and others, and unlike the mediation process where the EU, UK, US were worried enough about the spillover effects of the violence in the region to dip their hands into our mess…Kofi Anaan will be a lonely figure this time around. Given the heat the ICC has been catching about the Bashir indictment and the fact that all their indictments so far have been of African leaders, they might not want to touch Kenya any time soon even with a strong case.

Next post…what options are swirling in my mind.

Full post as published by Kenyan Pundit on October 24, 2008 (boomark / email).