Kenya’s Security Apparatus Severely Indicted by Post Election Violence Report (Changes seem inevitable as the Police Commissioner draws Commission’s Ire):

As regards the conduct of state security agencies, they failed institutionally to anticipate. Prepare for, and contain the violence. Often individual members of the state security agencies were also guilty of acts of violence and gross violations of the human rights of citizens.

Violation of the Human Rights of Citizens
The Kenyan Commission on Post Election Violence (CIPEV) has completed its 4 month investigation into the politically motivated violence which rocked Kenya after the 2007 Presidential election with a stinging indictment of institutional failure and complicity of Kenya’s internal security apparatus in gross human rights violations and crimes against humanity.

The Commission’s report, delivered to the President of Kenya today, charges that Kenyan security agencies “failed institutionally” to contain and prevent the violence. Justice Philip Waki, of the Kenya Court of Appeal, chaired the Commission and is also expected to present the final report to the Kofi Annan led Panel of Eminent African Personalities.

The CIPEV report accuses some state agents of being “guilty of acts of violence and in our finding in broad violation of the human rights of citizens” and states that such were the results of a trend towards institutionalizing violence against the public. It also states that 1,133 Kenyans were killed and over 400 of this number were killed by gun shots during the 2 month period.

Free-for-All Situation
The violence was spontaneous in some areas and as a result of planning in other areas. Sponsors of the violence included politicians and business leaders. Incidents of spontaneous violence after the announcement of the Electoral Commission of December 30th 2007, morphed into planned violence against Party of National Unity supporters, and revenge attacks against Orange Democratic Movement supporters. The victims were identified by their attackers mainly on account of their ethnicity and perceived political bent.

But the post election violence was not merely citizen to citizen attacks – it also consisted of systematic attacks against Kenyans based on their ethnicity and political persuasion. The ability of the state internal security apparatus to protect Kenyans from violence is harshly questioned, and the CIPEV took note of the fact that in some cases attackers traveled long distances, unhindered, to attack their victims.

The “free-for-all” was made possible by the collapse of state security which saw the police overwhelmed. This conclusion by Justice Waki must surely put the Police Commissioner, General Hussein Ali, on the spot. Ali was the first witness before the CIPEV and refused to admit that the police were overwhelmed all the while justifying the use of deadly force. He famously stated that he “would do it all over again” when asked if he had reflected on his force’s acts or omissions during the 2-month period that violence raged across Kenya

Internal Security Failure
Justice Waki’s Commission charges the Police Force with “failure” in concert with its other internal security counterparts, the Provincial Administration, the Administration Police, and the National Security Intelligence Service. Their collective failure to act on intelligence reports contributed to the violence. Justice Waki also condemns “indifferent” state agencies such as the NSIS which possessed knowledge that apparently was not properly shared. Finally, the CIPEV concludes that the effectiveness of the Kenya Police and the Administration Police was hampered by inter alia “political expediency” impacting their work.

The report which, President Kibaki has directed should be made public today, recommends changes to the inter-agency coordination and joint operation structures of the Kenyan internal security apparatus. Among these are the merging of the Kenya Police and the Administration Police and the establishment of an Independent Police Authority.

Kenyan Politicians and Business Leaders fingered in Militia Killings – Recommends a Special Tribunal for Crimes Against Humanity Committed in Kenya - but prosecutions may not immediately follow

In previous episodes of political violence (since the 1990s) militias have been active. Since the last episode of violence in 2002, many such militias appear to not have been demobilized. During the 2007/8 eruption of violence, the militias were reactivated by “politicians and business leaders” who intended to overtly use violence as a tactic in the power struggle that followed the 2007 election announcement.

Justice Waki’s Commission identifies Kenya’s constitutional framework as a causative factor in the 2007/8 violence – repeatedly raising the stakes in election after election with ethnic coalitions confronting each other. The Commission specifically identified the concentration of power around the Presidency as a contributing factor to the Violence of 2007/8; and the flashpoint for what became an ethno-geographical power struggle between the Party of National Unity and the Orange Democratic Movement Party after the contentious announcement by the Electoral Commission of Kenya of Kibaki’s reelection.

According to Justice Waki, CIPEV obtained evidence identifying prominent sponsors and perpetrators of violence (“in politics, in government, in business and elsewhere”) and devised a means to anticipate and deal with the problem of political impunity in Kenya, and the need to secure real witness protection for informants. The Commission has recommended the creation of a special tribunal with a mandate to try persons for crimes against humanity committed during the post election period.

To safeguard against political vested interests in Kenya, the CIPEV has recommended that the Tribunal should have international members, as well as international prosecution and investigation staff. It expects that the proposed “Special Tribunal for Kenya” will be set up in Kenya as a court and will try those with the greatest responsibility for crimes against humanity.

The names of the perpetrators and sponsors of the violence will be kept in a sealed envelope, which is to be shortly presented to Kofi Annan of the Panel of Eminent African Personalities, pending establishment of the Special Tribunal for Kenya. It expects that the proposed tribunal will be set up in Kenya as a court and will try those bearing the greatest responsibility for crimes against humanity. The Panel of Eminent African Personalities may decide to send the names to the International Criminal Court Prosecutor for investigation.